Mrs T Kostakopoulou v University of Warwick and others: 1306894/2020 and 1304457/2020

EMPLOYMENT TRIBUNALS

Case No 1306894/2020, 1304457/2020

Between

Mrs T KostakopoulouClaimant

University of Warwick and othersRespondent

Before

Employment Judge Dean

Date 2 August 2023

JUDGMENT

The Claimant’s application for interim relief in respect of a claim presented to the Tribunal on 5 August 2020 for interim relief does not succeed.

REASONS

[1]By way of background in this case, a claim form was presented to the Employment Tribunal on 5 August 2020. The Claimant brought complaints of automatically unfair dismissal pursuant to Section 103A of the Employment Rights Act 1996 (“ERA”) for having made protected disclosures, detriment pursuant to Section 47B of the Employment Rights Act (protected disclosures) and for unlawful discrimination because of the protected characteristics of her sex and race and breach of contract and for holiday pay. Subsequently the claimant has raised a complaint that the respondent failed to provide written reasons for her dismissal.

[2]The application contained an application for interim relief and this Hearing has been listed to consider that application for interim relief.

[3]The Claimant’s application is that having made what she asserts to be protected disclosures, the Respondent treated her detrimentally because of having made protected disclosures qualifying for protection under Section 43B of the Employment Rights Act 1996 (“ERA 1996”). As a consequence of subsequent actions upon the part of the Respondent, the Claimant asserts that she has been dismissed by the Respondent on the 29 July 2020 and that her dismissal was an automatically unfair dismissal in breach of the provisions of Section 103A of ERA. The claimant claims for Interim Relief having been unfairly dismissed “for the reason (or, if more than one, the principle reason) for the dismissal is that the employee having made a protected disclosure”. The respondent asserts that the claimant was dismissed for the sole reason of her misconduct and deny that the claimant has been subjected to detriments as a consequence of making protected disclosures.

[4]The Claimant was employed as an academic member of staff within the First Respondent’s School of Law from 2012 until her dismissal on the grounds of gross misconduct on 29 July 2020. The background to the disciplinary allegations being made against the Claimant is outlined in the First Claim. In summary, the following allegations were made against the Claimant: a) failure to comply with reasonable management requests; nonattendance at five separate meetings to discuss issues raised by students; b) not fulfilling her duties in good faith; c) attempting to influence potential witnesses, specifically by questioning students in relation to complaints they may have made against her, in an effort to undermine the on-going investigation into the fulfilment of her duties; and d) harassing and displaying threatening and intimidating behavior towards students when questioning them in relation to complaints they may have made against the Claimant.

The Issues

[5]The complaint in respect of which an interim application is brought, is under the procedure of Section 129 of the Employment Rights Act 1996 which provides: - “129 Procedure on hearing of application and making of order. (1)This section applies where, on hearing an employee's application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find— (a)that the reason (or if more than one the principal reason) for the dismissal is one of those specified in— (i)section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A, or (ii)paragraph 161(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, or (b)that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of section 104F(1) and the condition in paragraph (a) or (b) of that subsection was met.

[6]The Claimant asserts that she has brought a claim pursuant to Section 103A ERA 1996 and the Claimant makes an application for interim relief pursuant to Section 128(1)(A)(i) ERA 1996: “128 Interim relief pending determination of complaint. (1)An employee who presents a complaint to an employment tribunal that he has been unfairly dismissed and— (a)that the reason (or if more than one the principal reason) for the dismissal is one of those specified in— (i)section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A, or (ii)paragraph 161(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, or (b)that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of section 104F(1) and the condition in paragraph (a) or (b) of that subsection was met, may apply to the tribunal for interim relief. (2)The tribunal shall not entertain an application for interim relief unless it is presented to the tribunal before the end of the period of seven days immediately following the effective date of termination (whether before, on or after that date). (3)The tribunal shall determine the application for interim relief as soon as practicable after receiving the application. (4)The tribunal shall give to the employer not later than seven days before the date of the hearing a copy of the application together with notice of the date, time and place of the hearing. (5)The tribunal shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so.”

[7]In essence, the issues to be considered are whether it appears that it is likely that on determination of the complaint to which the application relates the Tribunal will find: - i. that the Claimant been dismissed? ii. the reason for the dismissal, (or if more than one, the principal reason for the dismissal) was that the employer made a protected disclosure as described at Section 43B of ERA 1996? In particular that it is likely the Tribunal at the final hearing would find: a) That the Claimant had made a disclosure to her employer; b) That she believes that the disclosure tended to show one or more of the things itemised at (a)-(f) under Section 43B (1); c) That that belief was reasonable; i) That the disclosure was made in the public interest; ii) That the disclosure was the principle reason for her dismissal. The Legal Principles

[8]In considering an application or interim relief, I am required to undertake a predictive exercise as to the likely outcome of the full-Hearing. In undertaking that exercise, I seek to avoid making determinations of factual issues as if mine is a final determination of the matter. In the circumstances, the application stands on the pleadings, documentary evidence and the submissions and arguments of the parties. Having regard to the provisions of Rule 95 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 in considering an Interim Relief application “the Tribunal shall not hear oral evidence unless it directs otherwise”. This is not a case in which I consider it appropriate to hear oral evidence for either party.

[9]I have had the opportunity to take into account the claimant’s application in her Grounds for Complaint [16-28] and, somewhat unusually in this case, also the Grounds of resistance [87- 93] submitted by the respondent on 30 October 2020. I observe that in very many hearings considering an application for Interim Relief the respondent will have had only the barest of notice of the complaint and not had the opportunity to file a response to the complaint.

[10]The leading cases on the test to be applied by an Employment Tribunal hearing an application for interim relief are those of Taplin -v- C. Shippam Limited

[1978] ICR1068

and the Ministry of Justice -v- Sarfraz

[2011] IRLR 562

. An application for interim relief is for a brief urgent Hearing which is to make a broad assessment of the application and in particular the question whether the Claimant under Section 103A is likely to succeed. In the case of Sarfraz, Mr Justice Underhill – President at the Employment Tribunal gave the following guidance at paragraph 14:- “Thus, in order to make an Order under Sections 128-129 the Judge had to have decided that it was likely that the Tribunal at the final hearing would find five things:(i) That the Claimant had made a disclosure to his employer;

(ii) That he believes that the disclosure tended to show one or more of the things itemised at (a)-(f) under Section 43B (1);

(iii) That that belief was reasonable;

(iv) That the disclosure was made in good faith;

(v) That the disclosure was the principle reason for his dismissal.”

[11]Further guidance is given by the EAT in London City Airport Limited -vChacko

[2013] IRLR610

in which Mr Recorder Luba QC provided further guidance upon the approach to be taken and in particular the correct approach to be applied to the meaning of “it is likely”. The conclusions reached by Mr Recorder Luba QC reaffirms the exercise of judgment that an Employment Judge at the interim application hearing is required to undertake, at paragraph 23 he explains: “23. In my judgment the correct starting point for this appeal is to fully appreciate the task which faces an employment judge on an application for interim relief. The application falls to be considered on a summary basis. The employment judge must do the best he can with such material as the parties are able to deploy by way of documents and argument in support of their respective cases. The Employment Judge is then required to make as good an assessment as he is promptly able of whether the claimant is likely to succeed in a claim for unfair dismissal based on one of the relevant grounds. The relevant statutory test is not whether the claimant is ultimately likely to succeed in his or her complaint to the Employment Tribunal but whether "it appears to the tribunal" in this case the employment judge "that it is likely". To put it in my own words, what this requires is an expeditious summary assessment by the first instance employment judge as to how the matter looks to him on the material that he has. The statutory regime thus places emphasis on how the matter appears in the swiftly convened summary hearing at first instance which must of necessity involve a far less detailed scrutiny of the respective cases of each of the parties and their evidence than will be ultimately undertaken at the full hearing of the claim.”

[12]The Claimant who is a litigant in person, though not unfamiliar with the process of Employment Tribunal Hearings. The claimant is employed by the respondent as an academic member of staff within the First Respondent’s School of Law. Notwithstanding her academic appreciation of employment law the claimant is not, so far as I am aware, an employment law practitioner and may be forgiven for not appreciating that the nature of applications for interim relief are of their nature to be dealt with, with sufficient expedition so that, if successful, the relief may be granted in a timely fashion to preserve the employment relationship. EJ Findlay, in responding the claimants application to postpone the hearing until she had had sight of and opportunity to consider the respondent’s grounds of resistance, provided an explanation that it was not necessary for the respondent to have submitted a response to the complaint before the interim application was considered, and that it was not necessary for the judge considering the application to hear evidence nor for the parties to be represented before the tribunal. I hope that on reflection the Claimant will better understand more clearly the nature and constraints of an interim relief application and hearing.

[13]In considering whether or not it is likely that at a Final Hearing a Tribunal will find that the principal reason for the dismissal was on the grounds of whistle-blowing, without making binding Findings of Fact, an initial assessment must be made of whether, if a breach of a legal obligation is asserted by the Claimant, to have found the Section 103A application. The source of the obligation which the Claimant believes applies, should be identified and capable of verification by reference to statute or regulation. In Blackvey Ventures Limited (t/a Chemistree) -v- Gahir

[2014] IRLR416

HHJ Serota QC commended the approach to be taken by Employment Tribunals in considering claims by employees for victimisation for having made protected disclosures: - “1. Each disclosure should be identified by reference to-date and content. 2. The alleged failure or likely failure to comply with illegal obligation, or matter giving rise to the Health & Safety of an individual having been or likely to by endangered or as the case may be should be identified. 3. The basis upon which the disclosure is said to be protected and qualifying should be addressed. 4. Each failure or likely failure should be separately identified. 5. Save in obvious cases if a breach or illegal obligation is asserted, the source of the obligation should be identified and capable of verification by reference for example to Statute or Regulation.” Mrs Justice Slade DBE in Eiger Securities LLP -v- Korshunova

[2017] IRLR 115

@ paragraph 46 confirmed that the identification of the source of the legal obligation “does not have to be detailed or precise but it must be more than a belief that certain actions are wrong.” Actions may be considered to be wrong because are immoral, undesirable or in breach of guidance without being in breach of a legal obligation.

[14]Mrs Justice Slade DBE later drew the distinction between a legal obligation as opposed to a moral or lesser obligation which a Claimant may consider to have been broken which does not amount to a qualifying disclosure.

[15]In addition Ms Reindorf has drawn my attention to a number of authorities within her skeleton t which I have hade regard in reminding me of the proper approach to be taken and the meaning of “likely” which in this context is a “pretty good chance of success” which is “something nearer to a certainty than mere probability” and that a “good arguable case” is not enough. The respondent has provided copies within the authorities bundle of the following: Chesterton Global Ltd (trading as Chestertons) and another v Nurmohamed (Public Concern at Work intervening)

[2018] ICR 731

Ms L Parsons v Airplus International Limited

UKEAT/0023/16/JOJ

Ms L Parsons v Airplus International Limited

UKEAT/0111/17/JOJ

Sheik Khalid Bin Saqr Al Qasimi v Robinson

UKEAT/0283/17/JOJ

NASUWT v Harris 2019

UKEAT/0061/19/BA

Ibrahim v HCA

[2020] IRLR 224

The Materials & arguments

[16]The respondent has prepared a Interim Relief Hearing bundle which extends over 131 pages and it is indexed.

[17]The claimant asserts that she has been unfairly dismissed by the respondent and that the real reason for her dismissal was that she had made protected disclosures under s 103A of ERA 1996 and thus that her dismissal was an automatically unfair one. In the particulars of her complaint at para 16 the claimant states: “16. I shall rely on the following protected disclosures made in good faith and in the public interest: a) Internal Disclosures contained in my letters to the Sir David Normington, Chair of the Governing Council of the University of Warwick, Mrs Cooke, Deputy Chair of the Council of the University of Warwick, the Members of the Council and Ms Sandby-Thomas, Registrar of the University, of 6 June 2020, 13 June 2020, 24 June 2020 and 28 June 2020. These relate to failure to comply with legal obligations, disclosure that the health and safety of any individual has been, is being or is likely to be endangered and information tending to show any of the above is being or is likely to be deliberately concealed. b) Internal Disclosures containing in the five grievance files I have submitted to the University of Warwick since January 2020 falling within the ambit of above stated grounds of wrongdoing (s. 43B(1)(b),(d) and (f) of the ERA) . c) External Disclosures made to the Information Commissioner (submitted complaint RFA 0897317 on 9 December 2019 and ongoing since ICO was not satisfied with the University of Warwick’s response), the Department of Education, the Health and Safety Executive and my Member of Parliament, Mr A. Bell. I had previously made the disclosures internally and they had not been dealt with appropriately. “

[18]On 27 October 2020 [73-76] Notice of this interim Relief hearing was respondent has sought to agree a bundle of documents with the claimant in readiness for this Interim Relief application and I have been referred to their correspondence with the claimant [95-97] which drew the claimant’s attention to disclosure any documents that she wished to include in the interim relief bundle: “Please can you send me the documents Professor Kostakopoulou will be referencing for the purposes of her interim relief application. I will include the Tribunal papers but you will need to send me the early conciliation certificates and any documents which relate to Professor Kostakopoulou’s argument that her dismissal was because she made protected disclosures.”

[19]Ms Reindorf has confirmed that notwithstanding repeated requests sent to the claimant for such documentation to be disclosed none was forthcoming from the claimant.

[20]In considering what, if any, documentation there may be within the bundle that is relevant to the claimant’s alleged disclosures I have noted that within the bundle I have had sight of the claimants application to add a complaint that the respondent had failed to provide her with written reasons for her dismissal [43]. Within that document the claimant refers to “A: Outstanding Pre-Disciplinary Matters” in respect of which the claimant referred that she had : “been awaiting your response, careful examination in light of the duties of care and due diligence in ensuring the protection of human rights, including my health and safety, and actions in respect to:” The claimant referred then to correspondence including that being identified as Internal Disclosures to Sir David Normington and Ms SandbyThomas. The content of the document does not reveal any reference to matters in the public interest and on its face refers only the claimant’s personal circumstances and the respondent’s unfavorable treatment of her and her human rights and health and safety. I have been able to identify no other documentation refers to matters which I might identify as relating to her argument that she had been dismissed for having made protected disclosures.

[21]It is evident from reading the claimant’s Claim form and the particulars of her complaint as well as the letter to which I have referred to above that the claimant has expressed at length her dissatisfaction with the respondent’s treatment of her and the effect she asserts that treatment has had on her health and safety in the context of her private workplace disputes. I have not however ad sight of the protected disclosures that she asserts she made in her claim form that formed part at least of her complaints to the Employment Tribunal case number 1304457/2020.

[22]The claimant asserts that she was unfairly dismissed. I have been referred to the respondent’s ET3 and their Grounds of Resistance [87-93] in which the respondent describes the reason for the respondent subjecting the claimant to a disciplinary process was that in summary, the following allegations were made against the Claimant: “a) failure to comply with reasonable management requests; nonattendance at five separate meetings to discuss issues raised by students; b) not fulfilling her duties in good faith; c) attempting to influence potential witnesses, specifically by questioning students in relation to complaints they may have made against her, in an effort to undermine the on-going investigation in to the fulfilment of her duties; and d) harassing and displaying threatening and intimidating behaviour towards students when questioning them in relation to complaints they may have made against the Claimant.”

[23]The respondent gives an account that they proposed Professor Andy Lavender was to conduct a disciplinary investigation into the allegations against the claimant and the claimant was suspended on 16 January 2020. The claimant raised a grievance against her suspension which was investigated and not upheld. The claimant raised an appeal in respect of the grievance and that was not upheld on appeal. The respondent completed the disciplinary investigation which led to a disciplinary hearing being held on 20 July 2020. The decision at the hearing held in the claimant’s absence was that she was found guilty of the misconduct alleged at a) and b) and of gross misconduct in respect of the allegations c) and d). Despite her long service that was not considered sufficient mitigation to excuse her conduct or an alternate sanction to dismissal. The claimant appealed her dismissal and participated at the appeal hearing held on 27 August 2020 [116]. The respondent states they effectively reheard the disciplinary complaints and upheld the original decision. I have been referred to the documentary evidence in relation to the disciplinary and appeal process [110-131].

[24]The claimant is clear in her grounds of application that she has made disclosures to her employer that she believes tend to show one or more of the things itemised at section 43B(1) (a)-(f) of ERA 1996. However absent sight of any evidence to support the content of those disclosures, not even the documents within which such disclosures were alleged to have been made, it is not possible for me to identify the precise nature of the alleged protected disclosures. It is not possible for me to conclude in my summary assessment that such disclosures have been made in good faith.

[25]To the extent that I have been referred to other documents sent by the claimant that refers to any of her alleged disclosures that would appear to be to allegations of a breach of legal obligations in respect of her personal employment and contract terms and her own health and safety. There is nothing before me that leads me to conclude that the claimant at the time she made such disclosures that she did subjectively believed that she was making disclosures that were in the public interest, as opposed to being disclosures about her personal interests that may or may not have been of public interest and that such believe was objectively reasonable.

[26]It is not possible on the limited information presented to me by the claimant to determine if it is likely on determining the complaint that the Tribunal will find that the reason or principal reason for the dismissal was the proscribed ground as required by s129 ERA 1996. That is not to say that at a final hearing a Tribunal panel hearing all relevant evidence may not determine that protected disclosures were made and that the reason or principle reason for the claimant’s dismissal was that she had made protected disclosures.

[27]In contrast the respondent has provided documentation that suggests the respondent had cause to conduct a disciplinary investigation into the claimant’s conduct and to convene a disciplinary hearing the outcome of which was the claimant dismissal for gross misconduct. I note that the claimant makes a number of assertions in her grounds of complaint that as well as being substantively unfair the disciplinary process was flawed para 20 [21-23]. The respondent on my assessment of the documents submitted to me has identified a substantive reason why the claimant’s employment was terminated and I am unable to reach the conclusion that it is likely or that the claimant has a pretty good chance of success in the final determination of the merits of her complaint to the Employment Tribunal. Assessment

[28]It is unfortunate in this case that the claimant, having been informed that the hearing was to proceed and her application to postpone was not granted has not engaged with the respondent to produce to them and thus to the tribunal documentary evidence to support her application for interim relief. This application for interim relief is one that has not been brought before the tribunal in as expeditious a time as it usually would and that is to be regretted. However, I make my summary assessment on the information and materials before me. I have taken the claimant’s pleaded case and correspondence and considered the papers in the bundle prepared by the respondent.

[29]I have considered the written submissions made on behalf of the respondent and also the oral submissions made to me on the day. Given the nature of the hearing I have sought not to make findings of fact that would otherwise bind the Tribunal panel hearing all of the evidence at the final hearing of the case.

Conclusions

[30]The factual matrix in this case is far from clear on a summary consideration of whether the Respondent’s act of dismissing the claimant was one which was done because the Claimant had made a protected disclosure contrary to Section 103A of the Employment Rights Act or for unrelated reasons as asserted by the Respondent as being because of the claimant’s gross misconduct. On a summary assessment I am not able to conclude that the claimant has been able to demonstrate that it is likely that the Tribunal at a final hearing will conclude that the claimant was dismissed by the respondent because of her having made a protected disclosure and that the disclosure was the principle reason for her dismissal.

[31]On the necessary summary consideration of the documentary evidence that has been brought to my attention, the Claimant has not particularised any breach of any actual legal obligation as opposed to good practice standards and moral standards to which the Respondent might adhere, nor does the Claimant particularise any alleged breach of Health & Safety.

[32]Having considered the authorities to which my attention has been drawn, and having considered the documentation and representations that have been made, I am unable to conclude that the Claimant has a “pretty good chance” of establishing that she was dismissed contrary to Section 103A ERA 1996. To succeed in the application the Claimant must have a pretty good chance of satisfying the burden of proof at the Final Hearing, such that on my consideration of the interim relief application, I am not able to conclude that the Claimant has demonstrated that it is likely that on determining the complaint to which the application relates, the Tribunal will find that the reason (or if more than one, the principle reason for the dismissal) was one of those specified in Section 103A. From the summary assessment that I have made based upon the documents to which I have been referred and the argument before me the claimant has not satisfied the standard of consideration to succeed in her application for Interim Relief. The Interim relief application does not succeed.

List of issues

[33]Employment Judge Camp did however provide a mechanism for the parties respective points in relation to the agreement of the list of issues in the second claim to be addressed (see paragraphs 11 & 12). He also recorded (paragraph 20) the claimant had indicated she was not intending to make any further applications other than perhaps to seek permission to lodge a supplemental witness statement.

[34]His order was sent to the parties on 13 June 2023. There followed a flurry of correspondence. It is the matters that followed his order that the respondents rely upon to support their application for strike out.

[35]On 14 June 2023 Employment Judge Camp refused an application made by the claimant of 13 June to vary or set aside the orders he made [C/688-689]. He recorded that the claimant had not identified the particular respects in which she alleged the list of issues prepared by the respondents did not comply with Employment Judge Broughton’s order and then continued :- 9 / 32 “5. It will be part of the reasons for my decision on the respondent’s strike out decision that the claimant has behaved unreasonably and that her unreasonable behaviour continued during the hearing. Amongst other things, this has led to a disproportionate amount of judicial time and Tribunal administrative time and resources having to be devoted to her case, which is not fair on other litigants. It is also unfair to the respondents for them to have to spend time and incur costs dealing with that behaviour. The claimant’s unreasonable behaviour has included repeatedly seeking to reargue things that the Tribunal has decided against her. Much of her letter of 13 June 2023 consists of her doing exactly that. Further correspondence of that kind is likely to be dealt with summarily. 6. … I order that the respondents do not have to respond to any further applications or requests or demands that the claimant makes unless specifically directed to do so by the Tribunal.” [Our emphasis]

[36]The claimant complained before us that the final paragraph prevented her from liaising with the respondents’ representative so she could prepare for trial. For the reasons that we give below (82 & 83) that is incorrect but in addition she continued despite Tribunal orders to make and repeat applications that had been determined.

[37]A further letter was sent on behalf of both Employment Judges Camp and Broughton on 15 June 2023 [C/693 - 694]. The former responded to an issue the claimant raised regarding varying or setting aside orders where he reminded her that there was nothing wrong in her seeking to do that, but issue was taken with her repeatedly seeking to reargue matters that had already been decided (and although he did not say that there elsewhere he made the point) that was subject to a caveat where the circumstances underlying the applications had not materially changed. Employment Judge Broughton stated he was due to be going on leave, had reviewed the document, it accorded with his view of events save that rather than expressly refer to the events as he had directed, it cross referenced them in the claim form.

[38]The claimant’s email of 1:45 pm (or thereabouts) of 15 June was referred to Employment Judge Broughton who clarified the same day [C/696] that the list of protected acts should include all the matters identified in paragraphs 25 to 10 / 32 27 of her claim form and the detriments include all those identified in paragraphs 20, 24 and 25 of her claim form. He repeated that the relevance of the European Jurisprudence had been extensively addressed.

[39]Further correspondence from the claimant followed. Again Employment Judge Broughton agreed with points she was making and directed the respondents to make changes via his order of 16 June 2023 and that subject to those amendments the list of issues would be as previously ordered [C/699].

[40]The claimant’s position before us on day 1 was that Employment Judge Broughton had merely rubber stamped what the respondents’ had sought in their list of issues and he was siding with the respondents. Her subsequent email of 15 July 2023 (the year on the document appears incorrect as it refers to a letter of 7 July 2023) [SO/490-494] made similar assertions including that he had been discourteous, had made inappropriate comments and was biased against her without detailing what it was he had said or done. Having warned her of the seriousness of such an allegation she persisted with it. That email of 15 July also included an allegation of Mr Browne the respondents’ solicitor obstructing justice and preventing a fair adjudication of her complaints.

[41]We find that at least with regard to the orders he made on 27 February where he ordered that at least one document be disclosed, that one of the witnesses the claimant had sought to be called appeared to be relevant, that certain (parts) of the redacted documents should be unredacted and then on 15 & 16 June Employment Judge Broughton at least in part agreed with the claimant and not the respondents in relation to the contents of the list of issues and ordered as such. Accordingly, he was not as alleged “rubber stamping” or wholly siding with the respondent.

[42]Following further correspondence on 16 June Employment Judge Camp directed a further letter be sent to the parties. It varied the timetable for the list of issues to be addressed and clarified what the claimant was expected to do [C/701-702] “… she must specify what she wants added to or removed from it …”. 11 / 32

[43]For the purposes of the record the documents she provided at trial [C/715-727] in relation to claim two were completely different from that provided by the respondents in relation to claim two [C/708-714] and did not set out the words she specifically wanted to be added or removed. In addition she provided a list of issues having alleged there was none in relation to claim one before us arguing that was a Scott schedule and not a list of issues as such.

[44]On 7 July 2023 [C/737-738] Employment Judge Broughton directed the following be sent to the parties:- “EJ Broughton is satisfied that the respondent’s amended list of issues adequately reflects the discussions and agreements at the previous hearings before him and will stand as the definitive list of issues in claim 2. The claimant’s proposed amendments to the document are completely contrary to the previous orders of EJ Broughton and appear to be little more than an attempt to subjectively destroy the purpose and usefulness of an appropriate neutral list to, instead, make the claimant’s case and continue her approach of litigating by correspondence. EJ Broughton orders that, in the interests of the overriding objective, the claimant’s list and proposed amendments are to be ignored and no further submissions in relation to the issues will be accepted, considered or responded to. EJ Broughton considers the claimant’s latest response in this matter to continue to utterly disregard due process, previous agreements and tribunal orders. If it continues, even a little, it is likely to prejudice the possibility of a fair trial ever being possible and may already meet the threshold for a significant adverse costs award. For the avoidance of doubt, this is not determining the point or seeking to tie the hands of any future EJ or tribunal in the case. It is a warning in the sternest possible terms to try to assist the claimant to focus on the issues and 12 / 32 preparation for the hearing and turn away from her current strategy before the consequences mount up against her.” Our determinations

[45]Having heard representations regarding the lists of issues the tribunal concluded

[46]With regards to the issues in relation to claim two that there had been no material change in circumstances and absent a material change the matter had been determined as definitive on a number of occasions most recently on 7 July 2023 [C/737-738] (see (44)).

[47]Having determined the issues in relation to claim two at the end of day 1 at the start of day 2 the claimant sought to reargue the matter again suggesting the tribunal had misinterpreted the question concerning “material difference” correctly and suggested the tribunal was targeting her. She gave no detail of how that was so other than by referring to determination the tribunal had made. Her application was refused.

[48]The Tribunal then heard representations in relation to claim one; the claimant considered that there was no list of issues (see (43)) and did not accept the list of issues that the respondents believed represented the issues that were to be tried, namely two Scott schedules of detriments [R/99] and disclosures [R/147] respectively.

[49]Having heard representations we concluded that on our reading of the order of 27 February 2023 Employment Judge Broughton had identified (paragraphs 12 – 14) that subject to the amendments the respondents were to make to it that represented the definitive list of issues and his confirmation the clarifications she sought were unnecessary in that claim and had the claimant not believed that to be the case she should have raised that with the Tribunal as indeed she did in relation to claim two after she received his order in relation to that hearing which was dated 7 March 2023. We canvassed with her several times where she had done so and she accepted that she had not. Given the time and emphasis the tribunal and indeed parties had placed on agreeing the issues we 13 / 32 find it was or should have been clear to her that that dispute should have been raised and her failure to do so was inconsistent with her approach in relation to disputing the issues in relation to claim two. Her application was refused.

[50]As we say above we then gave directions in relation to the claimant identifying documents from the respondents’ bundle she wished to have omitted and those from her bundle she wished to have included and then sought to identify how long she required to do that and to prepare any submissions/responses she wished to make in relation to the applications that we were to hear. She did not volunteer an estimate so we suggested we break until 11:00 am the following day (day 3) but asked her to provide the information regarding the bundle to the tribunal and the respondents by 10:00 am so both could consider them. The applications

[51]We indicated (and no objections were made) we would hear the claimant’s applications first, hear the respondents’ response to the claimant’s application, the respondents’ strike out application and then the claimant’s response to the strike out application (including her own application for strike out and refusal of the respondents’ strike out application).

[52]The claimant’s applications initially compromised 3 elements 52.1. Factualisation (albeit this had changed over time initially relating to the misconduct and dismissal but by the time of the hearing before Employment Judge Camp it related to particularisation of the allegations regarding the claimant’s suspension) 52.2. The issue of redaction (again this changed before us from an application for the claimant to view the documents to an application for only us to do so) 52.3. Hearsay evidence

[53]On the morning of Day 3 the claimant expanded these to include 53.1. her objection to strike out and to seek costs against the respondents and 14 / 32 53.2. to pursue her own application for strike out of the respondents’ case and costs

[54]The respondents’ application for strike out was premised on rule 37(1)(b) of the Employment Tribunal Rules of Procedure 2013 :- “Striking out 37.—(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— … (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; …”

[55]It was argued on the following bases:- 55.1. Wholly unsubstantiated allegations of dishonesty against the Employment Tribunal and staff 55.2. Serious allegations of dishonesty against the respondents’ solicitor 55.3. Obstructively conducting the proceedings 55.4. Litigating by correspondence and 55.5. refusing to accept directions (and the jurisdiction) of the Tribunal

[56]We indicated that given some of the application flowed from our determination e.g. the costs applications from both sides we would conduct a case management to address them in due course.

[57]On a final note at 4.00 pm on day 3 the claimant was due to start her response to the respondents’ application for strike out. The claimant suggested she could 15 / 32 do that within an hour. The panel indicated we wished to view one of the documents we had be taken to first. That had been sent in, but had not been printed off for us in hard copy so we arranged for that be done. That took half an hour and upon the resumption whilst the claimant said she would finish by 5:00 pm the panel stated they did not want her to feel under any time pressure or rushed and so would reconvene the following day. When we reconvened the claimant’s submissions took all day. The claimant’s applications

[58]As to Factualisation the claimant accepted this was again a repeat of the application heard By EJ Camp but that it differed to that before Judge Broughton. We explained that Judge Broughton had sought to address this, the claimant should have raised any additional points before him, they were only raised afterwards and then dealt with by Employment Judge Camp. The claimant ha not identified any material change since then. It is refused.

[59]We find Employment Judge Broughton set out to clarify the issues so the claimant could not be ambushed at trial and had explained as indeed we did why at least for the unfair dismissal complaint that it was for the respondents to set out the reason for dismissal and the Tribunal would then consider the burden being a neutral one if the investigation was fair and there were reasonable grounds to come to the decisions that the respondents came to. We further explained the different tests and burdens for wrongful dismissal. We explained the practical effects of each. Despite those explanations and previous determinations the claimant persisted with the applications. We had explained to her before doing so that that was one of the reasons the respondents were seeking a strike out.

[60]Redaction. This application was again addressed by Employment Judge Broughton. As we say above he had found in her favour in relation to parts but not others. Unlike the other decisions Employment Judge Broughton made we could find no trace in the EAT decision of 22 June 2023 concerning this. The claimant confirmed she had not appealed this aspect of the decision. Nor any material change in circumstances. Her explanation was that she intended to 16 / 32 pursue it before us at trial. We explained that the proper course absent a material change in circumstances was to appeal the decision, she could have done so having appealed other issues on that order, and did not. Nor did she indicate she had made the respondents aware that she would so. She was essentially ambushing the respondents by taking them by surprise at trial.

[61]Both of those points in our judgment were unreasonable conduct of itself. Further, had the claimant considered the effect of her decision to raise this only at trial she would or ought reasonably to have identified in our judgment that if this application had been successful it would have necessitated the disclosure of those documents, that she be given time to consider them and the revision of the bundle, all of which would eat into the tribunal hearing. In our judgment that shows scant regard for not only the issues of fairness and a fair trial by the claimant but also practical issues as to the hearing of the claim within the trial window.

[62]For those reasons that application was refused.

[63]On a final practical note, albeit one we cannot criticise the claimant for, that would have necessitated another judge hearing the application rather than this panel (as Employment Judge Broughton had done) so the panel were not prejudiced by sight of the documents.

[64]Hearsay evidence. This related to the claimant’s query concerning the respondents’ refusal to call the individuals who had made the allegations and thus the weight the tribunal would attach to any evidence in that regard. In case management the Tribunal had explained that one of the principal issues the Tribunal would need to engage with was the extent of the investigation carried out by the respondents and if it had reasonable grounds to come to the view that it came to. We referred her when discussing Turner to Roldan 7.

[65]The claimant confirmed she was not pursuing this issue substantively given the Tribunal had already addressed this it in our case management discussion. The claimant however did ask as to the weight we would give to witness evidence. 7 Salford Royal NHS Foundation Trust v Roldan

[2010] ICR 1457

17 / 32 The panel indicated that was a matter the tribunal would consider having weighed all the relevant evidence.

[66]Similarly, when discussing the claimant’s witnesses at the outset it became clear they were not witnesses of fact but “character witnesses” and again the issue of her professional standing and performance would have needed to be considered by the respondents’ decision maker(s).

[67]The other applications. We indicated we would the other two complaints relating to strike out would addressed either with the respondents’ application or in due course The law concerning strike out

[68]It was agreed the law is set out in Tesco at paragraphs 33-44 so we do not repeat it here in full save in the following limited respects.

[69]The Overriding Objective requires that “The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal”. [our emphasis]

[70]So far as concerns us the test is threefold (per Bolch approved in Blockbuster):- 70.1. Is the threshold in r.37(1)(b) met (as set out above at (54))? 70.2. Is a fair trial possible? 70.3. Is strike out a proportionate response? and that staged approach is how we intend to approach matters. The claimant’s application

[71]This was premised on the basis that the bundle was deficient and full of duplication.

[72]Whilst the claimant was able to point out duplication to us she did not specifically refer us to relevant documents that were deficient and why they were relevant. One major problem is that her witness statement was produced before the bundle was agreed and despite indicating she might seek permission to lodge a supplemental statement she did not do so. Thus the only documents 18 / 32 she referenced in her statement were those in the DE bundle and we find that it was common ground that would be used as a supplemental bundle to any prepared by the respondents.

[73]As to duplicates they are a regular issue at trials not least because of the need to include the full bundles passed to claimants at each stage. That can usually be addressed by duplicates being identified as the claim proceeds and their inclusion normally does not distract from the case. Sometimes they are necessary to identify changes as indeed the issue the claimant raised about the respondents’ failure to disclose an attachment identified.

[74]We find any matters could and should have been addressed had the claimant been willing to engage in agreeing with a bundle in April 2023 at the latest as she had been requested to do so that could and should have been addressed. The respondents’ willingness to engage in that process was shown by its agreement to include the DE bundle likewise cannot be said of the claimant. As we say the lack of willingness to engage by the claimant is shown by her failure to provide the details when they were requested in April 2023 by the respondents.

[75]As to the respondents’ failure to agree the bundle and its failures to address the lists of issues as directed as we relay above this has been addressed in earlier orders.

[76]In our judgment insofar as there has been a breach by the respondents they were relatively minor matters that should not have effected the trial or preparations, those matters were determined previously and accordingly we find the response should not be struck out. The respondents’ application

[77]The respondents made clear that the application pursued before us is on the basis of matters arising after Employment Judge Camp’s order sent to parties on 13 June 2023. 19 / 32 Scandalous, unreasonable or vexatious

[78]As to the context by which we should undertake any assessment we note that whilst the claimant is a layperson she is also a law professor and advances complex complaints pursuant to human rights and EU law. Whilst she acts in person she has at times been assisted by others and represented at hearings. The respondents’ have repeatedly suggested she may wish to take advice and instruct lawyers. It is her right to decide if she represents herself or instructs others to do so.

[79]Given the application related to the matters arising after Employment Judge Camp’s order was sent to parties on 13 June 2023 we turn first to the issues we needed to address at the start of the trial.

[80]The claimant accepted before us the respondents delivered a bundle to her in April in accordance with the directions as amended following the lifting of a stay to the claim. The claimant argues that bundle was not agreed. Prior to the stay of directions, on 31 August 2022 the claimant had asked the respondents where in its bundle the DE bundle would be. On 6 September 2022 the respondents’ solicitors suggested the DE bundle be separated out but assured the claimant it would be included in full. Other correspondence followed and the stay of directions was made. On 12 April 2023 following the lifting of the stay, the claimant was asked by the respondent’ solicitors to clarify what documents she wished to have included in the bundle. She replied the same day stating that as the respondents had decided to exclude the DE bundle there would be two bundles. The respondents’ solicitors responded by email on 16 April 2023 stating that that they intended to proceed on the basis that there would be a bundle from the claimant comprising three pdf files that it attached to that email which the respondents’ solicitors believed was the DE bundle and in addition a bundle from the respondents.

[81]The respondents thereafter sent its bundle to the claimant of 1,700 pages in April in accordance with the directions for trial (as varied). On 18 July 2023 (three clear working days before the trial was due to start) the claimant hand 20 / 32 delivered her bundle of 2,043 pages in hard copy only to the respondents including the DE bundle (453 pages or so).

[82]We canvassed with the claimant where she had warned the respondents that she intended to include in her bundle any documents over and above the DE bundle. She accepted she had not. She argued she could not be blamed as she had been ordered by Employment Judge Camp on 13 June 2023 not to contact Mr Browne. That order said :- “Further to paragraph 5 above, I order that the respondents do not have to respond to any further applications or requests or demands that the claimant makes unless specifically directed by the Tribunal to do so.”

[83]That is a clear misreading by her of that order. That order did not prevent her from liaising (in the sense of emailing or writing to) the respondents’ solicitors or the Tribunal. Secondly she does not explain why she had not informed the respondents’ solicitors of her intentions in the near two months between the email exchange we reference above concerning the bundles (see (80)) where the respondents’ had made clear how they assumed she was proceeding and the date Employment Judge Camp’s order was sent out.

[84]The claimant suggested that her bundle be used in preference to that of the respondents and that it would have only taken the respondents a day to review her bundle.

[85]The documents included in her bundle went way beyond the documents in the DE bundle as it’s length alone demonstrates. The claimant accepted that certain documents were omitted from the respondents and others added in her bundle. The respondents’ representatives would thus not only have needed to check the contents and undertake a cross referencing exercise, to also check and take instructions on any documents added but to also review and form a view on any documents excluded. To expect it to do so in the 3 clear days prior to trial, we consider to be wholly unrealistic and unreasonable conduct. 21 / 32

[86]Had the claimant considered what her actions in seeking to use an entirely new bundle would have entailed for the respondents she should or ought reasonably to have concluded, not least given the time it took her to put her own bundle that together, which she told was a couple of weeks, that that was wholly unrealistic, even for a large firm and experienced leading counsel. The issue was not merely about the work involved but the proximity to trial and the claimant’s failure to notify the respondents of that in advance.

[87]We find that the claimant was endeavouring to take the respondent by surprise and ambushing them.

[88]Thereafter the claimant suggested that the respondents should use their bundle and she hers, stating she could provide the cross references for any documents referred to. In our judgment that was impractical and did not address the issues we refer to above. The respondents’ would still need to consider her bundle. Her continued insistence on using her bundle despite the difficulties this would entail for the respondents we find was unreasonable. That unreasonableness was further demonstrated by the claimant raising that our request for her to identify what should be omitted from the respondents’ bundle and added from hers was unfair because of the additional work that put her to. That was of her own making because that could have been avoided had she provided that detail in April 2023 when she was asked for it.

[89]We find the claimant behaved unreasonably by failing to notify the respondents when asked of the documents she wanted including in the bundle and providing her own bundle so late in the day. In doing so she was not engaging with her duties pursuant to the overriding objective.

[90]We should add that when we were referred to claimant’s bundle and documents we identified albeit minor differences between the copies of the claimant’s bundle that were before the panel and as to documents handed up missing/additional pages.

[91]In relation to the list of issues in relation to claim two, we find the claimant deliberately refused to follow the directions given by Employment Judge Camp in his order sent on 13 June despite the clarification he gave making what was 22 / 32 required as abundantly clear. Instead of providing the issues she wanted added and omitted she provided what was essentially a redraft of almost the entire document. That concern is yet further reinforced by the repeated reminders by the Tribunal to the claimant in relation to the European Jurisprudence (see (19, 23 & 24)), her failure to address the detail of how her rights were not protected by national law or what needed to be amended to reflect that but further her insistence that her rights were not protected despite having failed to consider elements of the caselaw until we pointed them out to her.

[92]Her failure to raise the dispute over the issues in claim one at all after 7 March 2023 (see (49)) was also unreasonable and her raising that point only at the trial again was in our judgment an attempt to take the respondents by surprise and ambush them.

[93]The claimant’s stance in relation to both lists of issues was unreasonable and a failure to engage with her duties pursuant to the overriding objective.

[94]The claimant’s stance in relation to the bundle and lists of issues was also in our judgment a deliberate refusal to accept any instruction or determination she did not agree with. That view is reinforced by the voluminous applications the claimant has made during the course of this claim.

[95]Towards the end of her submissions on the strike out applications the claimant was asked in the context of how the trial could be conducted going forward if she would accept and comply with the Tribunal’s order in relation to the lists of issues. She did not give a direct answer stating she was the one who had complied with tribunal orders and that if she was prejudiced or a decision was without merit she would exercise her right to appeal. That in our view amply reinforces the point.

[96]Those matters aside a yet further example of the claimant’s unreasonable conduct and her seeking to take the respondents by surprise and ambush them at trial related to the question of redaction we address above (60 - 62). That too was unreasonable conduct on her behalf and again demonstrates her failure to engage with the process and her obligations under the overriding objective. 23 / 32

[97]The claimant’s behaviour before the tribunal at times was also unacceptable; when questions were asked of the claimant she repeatedly either failed or refused to answer questions, made submissions, sought to amend or challenge the premise behind the question, or sought to pose a question in return.

[98]The claimant repeatedly talked over the judge, despite being repeatedly asked not to do so. On one occasion as soon as the judge had finished speaking the claimant asked if he had finished. On another when the judge having interjected to indicate that a line of argument that the claimant was raising had already been addressed and that that would not be considered again the claimant stated to the judge that she was talking first.

[99]On numerous occasions the claimant gave the distinct impression she was not listening to what the respondents’ counsel or judge had said. That was reinforced by a number of occasions when what leading counsel or the judge had said had to be repeated to her. Indeed on one occasion the claimant asked for the judge to repeat his reasons for a decision. Having taken a break and consulted with the panel members, the panel was in agreement that the claimant had not been paying attention whilst the judge had been delivering decision - she was rummaging through her papers and her bags to the side of the desk she was sitting at. That was notwithstanding the claimant having repeatedly been told that if she wished to make a note or seek time to consider and answer or ask questions that she wished to raise that she merely needed to ask us to pause so she could do so.

[100]Furthermore, when the judge was talking at times she paid no attention to the judge. Having been repeatedly asked by the judge to look at him when she was being spoken to so that he knew that she was listening (in the light of concerns we set above), the claimant was asked why she was looking at the clock whilst the judge was speaking to her we find that her response “I do not consider your question appropriate”, was rude and disrespectful.

[101]That behaviour is akin to the conduct of the claimant in Tesco v Smith. At paragraph 20 of its decision the EAT repeated the following extract from the reasons given by the first instance Tribunal:- 24 / 32 “17. … the claimant refused to look at the screen, he refused to address me directly and he persisted making representations to the clerk which he required the clerk to address to me. I told him to stop doing that. I told the claimant he must address me and, when the claimant kept talking, I told him to stop speaking over me. The claimant ignored me entirely. I told the claimant to stop seeking to co-opt the clerk into acting as his representative and to address me as the judge hearing the case. In particular I told him to stop talking over me so that I would explain to him how I proposed hearing this case in the circumstances and asked him to listen to me. I was entirely ignored, and the claimant continued to talk to the clerk, talking over me. The clerk asked him to stop addressing him and to speak to me. That request was ignored. It appeared that the claimant was making comments to the clerk about me and the respondent’s representative. I consider that was wholly unreasonable conduct on his behalf which was discourteous to the tribunal and which placed the clerk in an unfair and insidious position. If the claimant had behaved in a proper manner and had addressed me to raise objections to the hearing going ahead I would have considered them, but that did not happen. I have no doubt the claimant is aware of the way that parties are expected to behave in tribunal hearings having attended four previous hearings.” [our emphasis]

[102]That behaviour expanded to the claimant calling the respondents’ counsel a liar, making repeated complaints against Mr Browne (the respondents’ solicitor) including in her letters to the Tribunal 102.1. of 1 July 2023 [C/736] accusing him of making false and misleading statements to the Tribunal, attempting to pervert and obstruct the course of justice by seeking to eliminate from the list of issues, questions the final panel has to decide and 25 / 32 102.2. of 26 July 2023 that he had been engaging in prohibited conduct and victimisation of the her throughout the proceedings and abusing the tribunal process yet giving no detail.

[103]In her letter of 19 June 2023 [SO/539] she alleged that Employment Judge Camp characterised her application as without merit as a concealment of the respondents’ non compliance and a manifestation of real bias against her in that he sought to weave a false, negative narrative. She further alleged on 15 July 2023 [C/742a] that Employment Judge Broughton’s letter of 7 July [C/737- 738] was amongst other matters a manifestation of a judge bullying a party into submission and causing emotional destabilisation in order to aid the interests of the respondents.

[104]Those matters postdate the refusal of Employment Judge Camp to strike out the claimant’s claims. Whilst the respondent does not substantively rely on matters predating Employment Judge Camp’s refusal to strike out, the respondents also refer us to the following matters as to the likely of repeat:- 104.1. a criminal complaint against Mr Browne’s firm that predated 26 May 2022 under s.1(1) the Malicious Communications Act 1998 and s.127 Communications Act 2003 referencing the disclosure, or prohibition of withholding, of the above information as well as the SRA regulations [SO/41], and 104.2. defamation claims against a student who made the allegation and the third respondent (that were struck out).

[105]We find the claimant’s behaviour before the tribunal was therefore unreasonable and that extended to the respondents’ counsel, its solicitor and a Judge. We find that based on her maintaining those allegations despite being warned as to the seriousness of the allegations, and need for evidence to substantiate them that again demonstrates her refusal to engage with her duties and we find that it is almost certain they would be repeated at any trial.

[106]We are conscious that in Tesco the EAT said this:- 26 / 32 “3. If a claim form, or response, is of excessive length, and is not set out in a logical format (generally chronological), effective early case management is extremely difficult, and the more likely it is that there will have to be some form of further particularisation and case management before a hearing can be fixed. Litigants in person may not know the law, but they should generally be able to set out a coherent history of the events and explain the claims they consider arise. Claims rarely succeed because of the quantity of the allegations, it is the quality that matters. 4. The longer case management goes on, the greater the risk that a litigant in person will become embattled and fail to engage properly with the employment tribunal. Good case management requires that the parties work with the employment tribunal and each other in a constructive manner. Even litigants in person must focus on their core claims and engage in clarifying the issues. It is not the fault of a litigant in person that she or he is not a lawyer, but neither is it the fault of the other party or the employment tribunal. While the employment tribunal should take reasonable steps to assist litigants in person, this must not be at the expense of fairness to the other parties to the claim, and to litigants in other proceedings who seek a fair determination of their disputes, having regard to the limited resources of the employment tribunal. 5. Regrettably, those who are confused by, or disagree with, proper case management decisions that are fair to both parties, sometimes jump to the conclusion that the employment judge is biased and that the employment tribunal and its staff are adversaries to be challenged and attacked. If such a mistaken view results in a withdrawal from the required co-operation with the employment tribunal and the other party, necessary to advance the overriding objective, it puts a fair trial at risk.” 27 / 32

[107]We remind ourselves that any view a party may come to may also be reinforced by the litigation process itself for the reasons given in Gestmin SGPS SA v Credit Suisse (UK) Ltd 8.

[108]We have concluded that the claimant has failed to engage in the claim as she was required to do by the overriding objective despite the considerable lengths a number of tribunal judges had gone to explain matters to the claimant to encourage her to engage with in the process and what her failure to do so might entail.

[109]We find despite that there has been a repeated failure by the claimant to engage in the process and her conduct was scandalous, unreasonable or vexatious. Further there was a failure on her part to comprehend that was so. For instance she stated in correspondence “The only reason as to why there is not an agreed bundle is Mr Browne’s non co-operation.” (claimant’s letter 26 July 2023) and she repeatedly stated before us that she was not at fault and should be congratulated for the way that she had conducted herself.

[110]Given the way the claimant conducted the claims both prior to and at the trial, despite the warnings given by the tribunal, we find that there is a likelihood approaching certainty that the failures to engage would be repeated should the trial proceed. Is a fair trial possible

[111]Two questions arise, in the alternative:- 111.1. is a fair trial possible at all and/or 111.2. is a fair trial possible within the trial window.

[112]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) and that requires regard to be had to the consequences of delay (and in turn whilst 8

[2013] EWHC 3560 (Comm)

at [19 & 20]. See also Blue v Ashley

[2017] EWHC 1928 (Comm)

28 / 32 the memories of witnesses remain sufficiently intact to deal with the issues) and costs for the other parties (Emuemukoro).

[113]We disregarded from our consideration of both questions whether there would be any impact on the basis that this panel will not be able to sit on two days of the 15 originally scheduled for this hearing.

[114]By reason of the matters we refer to above (see (110)) we have no confidence that the claimant would cooperate or engage with any order that the tribunal were to give regarding the matters the tribunal are to decide or how the claim should be conducted.

[115]The claimant has repeatedly sought to relitigate matters that have been determined resulting in an inordinate amount of tribunal time being wasted both prior to and at this hearing. In addition she has sought to change the basis before us of applications that were previously made relying upon slightly different facts or a slightly different basis such that she can argue that there is a material change in circumstances. As we say above she has also repeatedly sought to take the respondents by surprise and ambush the respondents by her conduct.

[116]We find that conduct will continue should this hearing be allowed to proceed either during the trial window or at any point and if the claim did proceed the way the claimant would conduct it would render it impossible that the claim could be properly managed or managed at all by whichever judge and panel was scheduled to conduct it. For example if the panel was required to make a decision in relation to whether the claimant was entitled to ask a question (or not) of a witness or if the claimant was entitled to refer a witness to a document (or not) each and every such determination would be challenged.

[117]There has been extensive case management of this claim. The amount of tribunal time that has been wasted in this claim repeatedly going over the same or similar issues (that should in relation to the later have been canvassed and determined previously) is enormous. As Employment Judge Broughton highlighted in his order as long ago as 13 January 2023 [C/174] that this should have been a relatively straight forward claim and it was astonishing how it had 29 / 32 generated so much correspondence detracting from the core issues. That warning was repeated in stronger and stronger terms as we state above (see (34 & 44) amongst others) It is clear that extensive attempts have been made by the Tribunal to engage (“roll up its sleeves”) with identifying the issues. Yet despite the Tribunal time expended the claimant has not engaged with her duties or heeded those warnings.

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

[119]The appellate courts have repeatedly reminded Tribunals 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. 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 (Tesco).

[120]We have considered if a lesser sanction short of the draconian sanction of striking out the claimant’s claims is appropriate.

[121]The claimant was repeatedly warned by Employment Judges Camp and Broughton in relation to the way she was conducting these proceedings. We do not consider that further warnings would add anything to those given to date. In our judgment they have gone unheeded.

[122]Nor do we consider an adjournment is appropriate. For the reasons we give above a fair trial either within or without the trial window was not possible all.

[123]Tesco gave a further example of a lesser sanction; that the Tribunal limit the claim or strike out only those claims that are misconceived or cannot be tried fairly. To that end and whilst this alternative was not canvassed before us in order to ensure we had considered all possible avenues available to us we considered debarring the claimant from any direct involvement in the proceedings on the basis for at least some elements of the complaints the respondents has the initial burden of proof. 30 / 32

[124]A way might be to allow the claimant to forward written questions for the panel to pose. In addition to any concerns that we might have generally with regards to the fairness of any trial that might ensue the immediate difficulty with that course that springs to mind is our determination that we have no confidence the claimant would adhere to any list of issues or bundle we have determined should be used when phrasing those questions because of the way the claimant has, and in our judgment will conduct proceedings. Absent the claimant’s involvement in that way it is difficult to see how given the Tribunal as an independent judicial body could engage properly with the issues. Further, from the respondents’ perspective we have to consider the additional costs the respondents would be put to and the use of scarce Tribunal resources.

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

[126]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. We have reluctantly come to the conclusion that a fair trial is impossible because of the claimant’s unreasonable conduct, her failure to engage with her obligations and our conclusion that it was a certainty that would continue. Responsibility for those continued failures lie at her door. 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. 31 / 32 Case management

[127]The respondents indicated that they did not intend to seek costs (save that they have reserved their position if costs are sought by the claimant). The claimant has indicated that she may seek costs. On that basis no further case management is currently required. signed electronically by me