Ms Lowers v Staffordshire County Council: 1308940/2019

EMPLOYMENT TRIBUNALS

Case No 1308940/2019

Between

Ms LowersClaimant

Staffordshire County CouncilRespondent

Before

Employment Judge Noons

Ms Anderson - Counsel for claimant

Mr Peacock - Solicitor for respondent

Date 30 September 2022

JUDGMENT

[1]The respondent’s defence and grounds of resistance are struck out in accordance with Rule 31 of schedule 1 of Employment Tribunals (Constitution & Rules of Procedure 2013. JUDGMENT having been given orally at the hearing and sent to the parties on 15 August 2022 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 hearing of 5 August 2022 was originally scheduled to be an ADR hearing. However, the claimant made an application for the hearing to be converted to an open preliminary hearing to deal with their application to strike out the respondent’s grounds of resistance. The hearing was therefore converted to an open preliminary hearing and was conducted via CVP. Both parties had the benefit of representation at the hearing. Issues for the Tribunal to Decide

[2]I have to determine, in accordance with Rule 37 of schedule 1 of the Employment Tribunals (constitution and rules of procedure) 2013, whether to strike out all or part of the response on the grounds that the manner in which the proceedings have been conducted by or on behalf of the respondent has been unreasonable, whether there has been non-compliance with an order of the Tribunal and whether it is no longer possible to have a fair trial. The effect of any strike out of the response is such that it shall be as if no response had been presented as set out in Rule 21.

Background

[3]There is very little dispute between the parties are to what has occurred and I had the benefit of a 465 page bundle and a 27 page supplemental bundle of correspondence. Both representatives took me to the relevant pages in the bundles. No witness evidence was put before me and both representatives made lengthy oral submissions. There is a lengthy history of this matter and I set this out in detail below.

[4]The claimant’s ET1 was received on 28 November 2019. The particulars of claim run to 19 pages. The Respondent was required to submit their response by the 3 January 2020. On the 30 December 2019 the Respondent emailed the Tribunal stating that they would not be in a position to respond by the deadline and seeking an additional 28 days. At this point no request for further particularisation of the claimant’s claim was made.

[5]The respondent submitted an ET3 and grounds of resistance on 3 January 2020, that is to say within the original time limit for doing so. The grounds of resistance were a bare denial of the claims with no factual detail at all. Employment Judge Miller therefore refused the application for an extension to submit the ET3 and grounds of resistance but ordered that the Respondent may, no later than the 7 February 2020, provide further and better particulars of its response

[6]On the 7 February 2020 the Respondent wrote to the Tribunal requesting an extension for doing so until 21 February 2020 on the basis that “the respondent has been provided with a significant number of documents relating to the claimant which have been reviewed and have resulted in further requests to the relevant department for information. The respondent is awaiting this information.” The claimant objected to this extension request. No amended response was submitted on 7 February 2020 nor on 21 February 2020.

[7]A telephone preliminary hearing took place on 30 April 2020, (“First Preliminary Hearing”). The respondent submitted no documents for the First Preliminary Hearing and had still not submitted particularised grounds of resistance. The claimant did complete a standard agenda form ahead of the first preliminary hearing. There was no suggestion at this stage that there was any need for further particulars from the Claimant.

[8]The First Preliminary Hearing had to be adjourned to 15 May 2020 with the respondents being directed to submit their particularised response by 7 May 2020.

[9]On the 7 May 2020 the respondent submitted amended grounds of resistance that ran to 54 pages. The grounds of resistance themselves were 18 pages but, in a departure from usual tribunal practice, the respondents appended a number of documents to these grounds of resistance.

[10]The adjourned preliminary hearing (“Second Preliminary Hearing”) took place on the 15 May 2020. At this hearing, Employment Judge Algazy QC observed that “the respondent had served a lengthy draft response exhibiting substantial evidence but which did not address the specific matters under “Claims” in the claim other than to plead a generic defence which was substantially replicated for the various claims advanced. Difficulties arising from the pandemic were specifically adverted to”.

[11]The following directions were given at the second preliminary hearing:11.1 The respondent was to serve a detailed request for further particulars of the claim by 1 June 2020 with the claimant to serve a response by 29 June 2020.

11.2 The respondent was to serve any application to amend its response together with a draft of the amended response by 21 July 2020.

11.3 The claimant was to file an application for costs by 22 July 2020 and a further preliminary hearing was listed for 24 July 2020.

[12]On the 1 June 2020 the Respondent submitted a document they referred to as a request for Further and Better Particulars, however it included a request for an Impact Statement, disclosure of documents and what amounted to detailed witness evidence (including requests for the ‘gist of all words spoken’ in a number of meetings) Given the nature of the request the claimant requested an extension of time to respond and provided a full response 10 July 2020.

[13]On the 21 July 2020 the Claimant submitted an application for costs, referring to what they said was the Respondent’s ongoing disruptive conduct, failure to comply with directions, and the costs incurred due to multiple preliminary hearings to seek their compliance.

[14]On 21 July 2020, purportedly in accordance with the Tribunal’s Order made at the Second Preliminary Hearing, the respondent submitted an application to amend it response along with a copy of that response. However, the grounds of resistance submitted with that application were not new but were in fact the ones which had already been submitted by the respondent on 7 May 2020 and which had been subject to criticism by the Employment Judge at the Second Preliminary Hearing.

[15]A telephone preliminary hearing took place in front of Employment Judge Perry on 24 July 2020, (“Third Preliminary Hearing”). At this hearing the Employment Judge was able to identify the complaints. He also noted that the respondent had not complied with the order made at the Second Preliminary Hearing to serve its application to amend its response along with a copy of that response. Employment Judge Perry noted “it has not done so - the response is a repeat of that previously lodged.”

[16]He also noted “Sadly, little progress has been made”. He commented that the respondent “has merely relodged the current response and despite what Employment Judge Algazy QC stated as the requirement to apply to do so, it has not made a substantive application setting out the grounds for doing so to include the reasons why it has not so before. This conduct of the proceedings by the respondent meant that even at the Third Preliminary Hearing the Employment Judge was not able to list the case for final hearing.

[17]The respondent was ordered, by 21 August 2020, to serve “a detailed amended response setting out [the respondent’s] position as shall be relied on at trial, to include its [response to the claim under] s44(c) Employment Rights Act 1996” and “a substantive application to amend its response setting out the grounds for its application”.

[18]At the Third Preliminary Hearing Employment Judge Perry listed an open preliminary hearing on 30 September 2020 to deal with, amongst other things, the claimant’s application for costs and the respondent’s application to amend its response.

[19]The Respondent applied for an extension of time to the 4 September 2020 to comply with the orders given at the Third Preliminary Hearing. Nothing was received by the claimant by 4 September 2020 and they applied for an Unless Order on 7 September 2020.

[20]On the 29 September at 4.45 pm the Respondent submitted an application to amend its grounds of resistance accompanied by a witness statement and an ‘amended’ grounds of resistance. These amended grounds of resistance did not have any track changes in them. This submission was over a month after the order should have been complied with and over 3 weeks after the revised date the respondent had requested to comply with the order. It should also be noted that this submission was at the very end of the working day before the preliminary hearing listed for 30 September 2020.

[21]At the preliminary hearing on the 30 September 2020, (“Fourth Preliminary Hearing”), Employment Judge Coghlin QC set the matter down for final hearing starting on 1 November 2021. He also awarded costs against the respondent on the grounds of their unreasonable conduct to date in the matter. The amount of the costs award was not determined so as to allow the parties to try to agree the amount to be paid failing which Employment Judge Coghlin QC would determine the matters on the papers.

[22]At the Fourth Preliminary Hearing the Employment Judge again noted that both the previous Employment Judges had commented on the regrettable lack of progress on the case. In relation to the respondent’s application to amend its grounds of resistance Mr Mohammed, the respondent’s solicitor, accepted at the Fourth Preliminary Hearing that the “amended” grounds of resistance submitted the day before were in fact the same ones that had already been submitted twice before and which had been found to be insufficient by Employment Judge Perry and Employment Judge Algazy QC. The respondent accepted that they did not advance matters and did not press the application to submit an amended response.

[23]The respondent also did not oppose the claimant’s application for an Unless Order requiring compliance with the third and fourth bullet points under paragraph 2.3 of the Order of Employment Judge Perry following the Third Preliminary Hearing.

[24]Employment Judge Coghlin QC therefore made an Unless Order stating that “The litigation cannot proceed until the respondent’s case has been properly pleaded. Too long has passed already without this happening”. The Respondent was therefore given until 4 pm on 14 October 2020 to comply with the Unless Order.

[25]Further case management directions were also given at the Fourth Preliminary Hearing to get the case ready for final hearing. For the purposes of this judgment it is relevant to note that the respondent was ordered to liaise with the claimant to agree the bundle of documents and that a copy of the bundle had to be sent to the claimant by 10 February 2021.

[26]On the 13 October 2020 the Respondent issued amended grounds of resistance.

[27]On the 10 November 2020 the Claimant’s amended list of issues was provided to the Respondent. The Respondent had been ordered at the Fourth Preliminary Hearing to respond by the 25 November 2020, agreeing the same or providing an amended draft. To date the respondent has not done so.

[28]Following no contact from the respondent for a period of 2 months the claimant applied to the Tribunal for a stay of all directions to the 30 April 2021. That was due to having been advised previously that a relative of the respondent’s representative had COVID, although the respondent's representative had been communicating (albeit only in respect of extensions of time) for two months following that notification. The claimant did not want to apply pressure to the respondent's representative when it was unclear as to whether there were possibly personal circumstances which prevented progress on this matter.

[29]A further preliminary hearing was listed for 17 May 2021, (“Fifth Preliminary Hearing”). The respondent only replied to the claimant on Thursday 13 May 2021, this being the first response to any communications since January 2021.

[30]In the end the Fifth Preliminary Hearing took place on two days, 17 May and 8 July 2021 in front of Employment Judge Harding. Employment Judge Harding noted that the respondent had complied with the Unless Order set out at the Fourth Preliminary Hearing.

[31]At the Fifth Preliminary Hearing, the hearing for November 2021 was postponed as both parties agreed that the case was not ready for hearing and in fact more than 10 days were needed in any event. The claimant had submitted a 40 page list of issues and Employment Judge Harding pointed out the “need for cases to be kept within proportionate bounds and pointed out that it is often helpful (and proportionate) for the claimant to focus their claims on the issues that lie at the heart of their case”. The claimant’s representative, Ms Anderson, “acknowledged that both a greater degree of clarify and a greater degree of focus was required”.

[32]The Claimant was directed to provide a revised list of issue by the 1 September 2021 in a prescribed format, The respondent was directed to “file an amended Response to those allegations by no later than 29 September 2021. This shall include setting out the respondent's position in respect of the following matters;32.1 For the section 15 claim, in the event that a tribunal finds that the unfavourable treatment asserted occurred, whether it is accepted that it occurred because of the "something" identified by the claimant and, if it is not, what the respondent asserts was the reason for the treatment. The respondent shall also set out whether it is accepted that the "something" arose in consequence of the claimant's disability. If the respondent relies on justification the respondent shall set out the legitimate aim on which it relies.

32.2 For the indirect discrimination claim whether it is accepted that the asserted PCP/PCP's were applied, whether or not it is accepted that these caused the group disadvantage identified and the particular disadvantage to the claimant. If the respondent relies on justification the respondent shall set out the legitimate aim on which it relies.

32.3 For the reasonable adjustments claim the respondent shall set out whether or not it is accepted that each PCP asserted by the claimant was applied to her and whether or not the nature and extent of the substantial disadvantage suffered by the claimant as a result of the application of the PCP is accepted. The respondent shall also set out for each adjustment the date from which it is asserted time began to run for limitation purposes.

32.4 For the harassment claim whether or not it is accepted that the unwanted conduct occurred, and if so whether it is accepted that it was unwanted. Whether it is accepted that the conduct was done with the proscribed purpose or had the proscribed effect (as the case may be), and whether it is accepted that the conduct relates to disability.

32.5 The respondent shall also set out whether it considers that any of the claims in the list of issues requires an application to amend on the part of the claimant. If so it shall identify the type of amendment application that it asserts is being made and whether it agrees or objects to such an application. If it objects the respondent shall set out the grounds for its objections”.

[33]Employment Judge Harding also made directions for disclosure with each party having to “send to the other all relevant documents which are or have been in that party’s control including documents on which that party relies and documents which adversely affect that party’s case”. This was to be done by 11 November 2021 with a bundle being agreed by 9 December 2021 and the respondent to prepare and send to the claimant a copy of the bundle by 22 January 2022. The matter was set down for a final hearing lasting 16 days starting on 19 September 2022 which is 2 years and 10 months after the claim form was submitted and was the second time the matter has been listed for a final hearing.

[34]The claimant duly filed a revised list of issues. The respondent did nothing. The claimant sent her disclosure documents despite the respondent’s failing. The Respondent subsequently provided some documents to the claimant. On 23 March 2022 the respondent’s new legal advisers requested a copy of the claimant’s disclosure as this had not been given to them by the respondent. This was sent to them.

[35]The parties were required to attend a further telephone preliminary hearing (“Sixth Preliminary Hearing”) on 7 April 2022 to check compliance with the orders made at the Fifth Preliminary Hearing. On 6 April 2022 at 7.35 pm, that is to say after working hours on the night before the hearing, and it would appear in response to the claimant’s application for strike out and costs, the respondent provide new grounds of resistance. This was nearly 7 months after it should have been provided. Again, contrary to standard Tribunal practice, the amended response did not contain any track changes. The grounds of resistance changed the respondent’s position on certain matters from the earlier grounds of resistance.

[36]The claimant also maintained that the grounds of resistance still did not provide full particularisation, making sweeping assertions such as that the respondent had reduced the Claimant’s workload ‘on numerous occasions’ as a reasonable adjustment and providing a list of other adjustments said to have been made, but with no detail as to when, how or by whom such as was required for the case to progress.

[37]At the Sixth Preliminary Hearing Employment Judge Harding noted “Unfortunately there had not been compliance with directions; the respondent had failed to produce amended grounds of resistance, as ordered, disclosure had only partially taken place and consequently there was no agreed bundle and there had been no exchange of statements. I should add that given the extremely lengthy history of this case this failure to comply with the tribunal orders was wholly unsatisfactory. Matters went awry, it would appear, at least initially because the respondent had failed to lodge an amended response by 29 September 2021, as it had been ordered to do. This remained the case until shortly before this hearing…”

[38]The respondent sought clarification in respect of one aspect of the claimant’s claim and the clarification was given at the Sixth Preliminary Hearing. The respondent confirmed that it was not in a position to “set out its pleading in respect of the reasonable adjustments claim (which was the only outstanding matter)”. The claimant requested some further information from the respondent which their representative confirmed that they were “content to provide the information requested as part and parcel of the amended response, particularly as the information requested may limit the size of the disclosure exercise somewhat”.

[39]The respondent was ordered again to provide amended grounds of resistance addressing the claimant’s reasonable adjustments claims in the format set out in the order following the Fifth Preliminary Hearing and, by consent, the further information requested by the claimant no later than 5 May 2022.

[40]By no later than 26 May 2022 the parties were to send each other any outstanding disclosure. The bundle was to be agreed by 9 June 2022 with the respondent sending a copy to the claimant by 16 June 2022. Witness statements were to be exchanged by 14 July 2022.

[41]The claimant’s representative confirmed in writing on 11 April 2022 the further particulars that they were requesting and which the respondent had agreed to respond to at the Sixth Preliminary Hearing.

[42]Amended grounds of resistance were served on 5 May 2022, again the amendments were not marked in track changes. This meant the claimant’s representatives had to conduct their own exercise of identifying all the changes from the version sent to them on 6 April 2022. No explanation has been given to me as to why the various iterations of the grounds of resistance did not contain track changes to help the Tribunal and the claimant identify what changes had been made.

[43]Having carried out this exercise the claimant’s representative was of the view that the respondent had failed in two regards to provide the answers to the request for further particulars which they had agreed to do at the Sixth Preliminary Hearing. They therefore emailed the respondent’s representative on 6 May 2022 clearly setting out where they believed the answers had not been provided.

[44]The respondent’s representative responded on 13 May 2022 bluntly saying they considered that the respondent had complied sufficiently with the Tribunal’s orders and the claimant’s request for further particulars. This response did not point out where in the amended grounds of resistance it believed it had answered the requests, clearly it would have been helpful had they done so given there were no track changes in the amended grounds of resistance. The point taken by Mr Peacock before me today on some of the requests is that it will be contained within witness statements but I note that at the Sixth Preliminary Hearing the respondent had agreed to provide answers to the request for further particulars even where is strayed into the realms of evidence.

[45]No explanation has been given to me today as to why the respondent changed this position or why the respondent is seeking to go behind an order that was made by consent at the Sixth Preliminary Hearing especially as they agreed that answering the requests would limit disclosure. The claimant maintains that some requests have not been answered and that the respondent is trying to go behind what it had previously agreed to provide and what was ordered at the sixth preliminary hearing.

[46]The effect, the claimant says, of not providing this information is that the requests for specific disclosure are very wide, because the issues/timeframes cannot be narrowed without the information requested. The respondent has refused to provide the disclosure requested on the basis it is excessive. This is clearly the point which their representative recognized at the Sixth Preliminary Hearing and therefore why he agreed that the respondent would provide the answers in full. It is not clear on what basis the respondent has changed its mind nor is there an application before me to vary the consent order made on 7 April 2022.

[47]The respondent disclosed documents on 25 May 2022 and a bundle was agreed on 9 June 2022 which ran to some 1015 pages. This was in accordance with the directions given at the Sixth Preliminary Hearing.

[48]On 26 July 2022 the respondent’s representative sent over 1200 pages of additional documents to the claimant. The explanation for this is that their legal representative was at their offices taking witness statements and that during the course of those discussions it became apparent that more documentation existed which had not been disclosed. The respondent’s legal advisers quite properly advised the respondent of their ongoing duty of disclosure and the documents were duly sent to the claimant.

[49]The explanation given to me today was that the respondent had thought that they had already disclosed all documents. Mr Peacock said that it was only when sat with the respondent’s witnesses, who are different people from the respondents in-house legal team who conducted the searches to comply with disclosure, did it become apparent that there were documents which had not been disclosed.

[50]No explanation was given to me as to why these documents were not found by the respondent’s legal team when they were conducting their searches ahead of disclosure. No evidence was before me today at all as to the extent of the search made by the respondent’s legal department. Disclosure was first ordered for 16 December 2020. I also note that the respondent themselves when making their application to extend time to submit their response commented that they had a lot of documentation and yet the respondent took until less than 2 months before the start of the hearing to provide full disclosure.

[51]This late disclosure potentially more than doubles the size of the bundle. Mr Peacock on behalf of the respondent was not able to provide me with full details of what was contained within this late disclosure but did indicate that it contained some appendices to the investigation reports. These are clearly documents central to the claim. Again there was no explanation as to why they had not been disclosed earlier other than an assertion that the respondents (by which Mr Peacock must mean their legal team) thought they had disclosed everything.

[52]The case has come before me today for the seventh preliminary hearing to consider the claimant’s application to strike out the respondent’s response and for their costs. In the event we only dealt with the strike out application as there was not time to deal with the costs application.

Relevant Law

[53]Rule 37(1)(b) provides that a claim or response (or part) may be struck out if ‘the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent… has been scandalous, unreasonable or vexatious’ and at 37(1)(c) “for non-compliance with…an order of the Tribunal”.

[54]A party may find that his or her claim or defence is struck out on this ground if that party has conducted the case in an ‘unreasonable’ manner. For a tribunal to strike out for unreasonable conduct of proceedings, it must be satisfied either that the conduct involved deliberate and persistent disregard of required procedural steps or has made a fair trial impossible; and in either case, the striking out must be a proportionate response, Blockbuster Entertainment Ltd v James

2006 IRLR 630

, CA.

[55]In considering whether a claim should be struck out on the grounds of scandalous, unreasonable or vexatious conduct, a tribunal must consider whether a fair trial is still possible, De Keyser Ltd v Wilson

2001 IRLR 324

, EAT. in ordinary circumstances, neither a claim nor a defence can be struck out on the basis of a party’s conduct unless a conclusion is reached that a fair trial is no longer possible.

[56]In Bolch v Chipman

2004 IRLR 140

, the EAT set out the steps that a tribunal must ordinarily take when determining whether to make a strike-out order:56.1 before making a striking-out order an employment judge must find that a party or his or her representative has behaved scandalously, unreasonably or vexatiously when conducting the proceedings

56.2 once such a finding has been made, he or she must consider, in accordance with De Keyser Ltd v Wilson, whether a fair trial is still possible, as, save in exceptional circumstances, a striking-out order is not regarded simply as a punishment. If a fair trial is still possible, the case should be permitted to proceed

56.3 even if a fair trial is unachievable, the tribunal will need to consider the appropriate remedy in the circumstances. It may be appropriate to impose a lesser penalty, for example, by making a costs or preparation order against the party concerned rather than striking out his or her claim or response.

[57]In Blockbuster Entertainment Ltd v James

2006 IRLR 630

, CA. the Court of Appeal noted that the courts and tribunals must be open to the difficult as well as to the compliant so long as they do not conduct their cases unreasonably. In considering whether a case has been conducted unreasonably, a tribunal should bear in mind that the time to deal with persistent or deliberate failures to comply with rules or orders is when they have reached the point of no return. The Court took the view that it was not satisfactory for a tribunal to simply record that a strike-out is ‘the proportionate and fair course to take’. Rather, it should have spelt out why a strike-out was the only proportionate and fair course to take.

[58]In Emuemukoro v Croma Vigilant (Scotland) Ltd and ors

2022 ICR 327

, EAT, the EAT rejected the proposition that the question of whether a fair trial is possible must be determined in absolute terms; that is to say, by considering whether a fair trial is possible at all, not just by considering, where an application is made at the outset of a trial, whether a fair trial is possible within the allocated trial window. The EAT considered that, where a party’s unreasonable conduct has resulted in a fair trial not being possible within that the allocated window, the power to strike-out is triggered. Whether the power ought to be exercised depends on whether it is proportionate to do so.

[59]Mr Peacock urges me to find that all the respondent’s unreasonable conduct of proceedings prior to the costs order at the Fourth Preliminary Hearing in effect fall away as their behaviour is dealt with by the costs order. With respect to Mr Peacock, I do not agree. The respondent’s conduct of proceedings prior to the Fourth Preliminary Hearing has been found to have been unreasonable and that is why the costs order was made. I am entitled to take this conduct into account when determining whether or not to strike out the response. Application of Law

[60]As set out above there is a sorry history of this case with repeated noncompliance with orders by the respondent. The respondent has chosen to conduct these proceedings in such a way that there have been wholesale failures to comply with tribunal orders. This includes failures to comply with orders made by consent. There has already been a finding that the respondent’s conduct of proceedings prior to 30 September 2020 was unreasonable.

[61]The first date for disclosure was 16 December 2020, there is then a further order for disclosure by 11 November 2021 and then by 26 May 2022. Despite this the respondent failed to comply with its disclosure obligations until 26 July 2022.

[62]The respondent’s solicitors, quite properly having advised the respondents of their disclosure obligations, provided what they believed to be full disclosure on 25 May 2022. This led to a bundle of some 1015 pages in total and then a further 1200 pages are disclosed to the claimant on 26 July 2022. The only explanation as noted above that the respondent gives is that these only became apparent when witnesses were spoken to.

[63]I have heard no explanation as to what steps the respondent took when conducting searches ahead of disclosure. It is quite clear that a proper and diligent search cannot have been carried out. The witnesses cannot have been asked if they still had any documents. This is despite clear guidance from the respondent’s solicitors as to their disclosure obligations.

[64]In this regard the manner in which the proceedings have been conducted by the respondent is unreasonable. It is also a failure to comply with a tribunal order.

[65]Further I find the respondent has failed to comply with the consent order made at the hearing on 7 April 2022. The respondent did not provide answers to all of the requests. The respondent’s failure to comply with the consent order amounts to unreasonable conduct of the proceedings.

[66]I also find that the respondent’s failure to provide full grounds of resistance until 5 May 2022 amounts to unreasonable conduct of the proceedings. The usual time limit for submission of grounds of resistance is 28 days. There have been multiple occasions where the respondent has not complied with Tribunal orders in relation to the grounds of resistance. These resulted in the Unless Order but despite compliance with that order the manner in which the proceedings were conducted by the respondent continued to be unreasonable such that at the Sixth Preliminary hearing the respondent again had to be ordered to provide amended grounds of resistance.

[67]There have also been points as set out above where the respondent has failed to engage with the Tribunal process for several months and has only engaged at the last minute just before a scheduled preliminary hearing. I find in relation to this that again the manner in which the respondent has conducted the proceedings has been unreasonable.

[68]Overall, I therefore find that there has been deliberate and persistent disregard of the Tribunal’s processes and procedures.

[69]Having concluded that the manner in which the proceedings have been conducted by the respondent has been unreasonable and that there have been failures to comply with Tribunal Orders I have also concluded that a fair trial is no longer possible in the trial window. The claimant, despite nearly 3 years of trying to progress her case and complying with orders for disclosure, has been ambushed with 1200 pages of disclosure 7 weeks before the start of a 16 day hearing. Ms Anderson on her behalf has submitted that there is not enough time left for the claimant and her legal team to review this disclosure, consider whether there is anything further required and finalise her statements and prepare for the final hearing. I agree with Ms Anderson’s submissions.

[70]I canvassed with the parties whether sequential exchange of statements could help remedy deficiencies but it is clear that it could not. The claimant says there are still requests for disclosure outstanding because of the respondent’s failure to comply with the consent order. Before statements could be exchanges disclosure has to be completed. I therefore conclude that a fair trial is not possible during the current trial window.

[71]I also have considered whether a fair trial is possible at all given the unreasonable manner in which the respondent has conducted the proceedings. The number of preliminary hearings in this case is quite remarkable and I have no confidence were I to postpone the hearing and relist it that the respondent would conduct the proceedings in a reasonable manner such that a final hearing could take place. For example they were told as far back as 15 May 2020 that their response was deficient and yet it took almost 2 years to rectify this.

[72]I am also mindful that a postponement and relisting of a 16 day case would delay the hearing for somewhere in the region of 9 months meaning the claimant would have to wait nearly 3 years to have her case determined. This further delay would come with a significant risk of memories fading even further. This is a case which has already had its final hearing postponed once before. I therefore find that a fair trial is no longer possible because of the respondent’s unreasonable conduct of these proceedings.

[73]Having concluded that a fair trial is no longer possible, I have also to consider whether strike out is a proportionate and fair response to the manner in which the respondent has conducted proceedings and for their failure to comply with Tribunal orders. I appreciate that strike out is a draconian measure and only to be used in the most extreme of cases.

[74]In this case strike out is proportionate and fair because the respondent has already had costs awarded against it for it’s unreasonable conduct and yet this unreasonable conduct of proceedings has continued and persisted. There has been repeated failures to comply with Tribunal Orders including an Order which was made by consent. It is proportionate and fair because the respondent has had considerable opportunity to change the manner in which they conduct the proceedings and yet they have not done so. The orders made at the Sixth Preliminary Hearing were the last chance to get this case ready for hearing and the respondent has failed to avail itself of this last chance. I conclude that if I were to adjourn the hearing and potentially make an order for costs as an appropriate sanction that the respondent would still conduct the proceedings in an unreasonable manner and fail to comply with Tribunal Orders. It has shown this in the past and there is no reason to expect this behaviour to change in the future.

[75]I have also considered whether partial strike out of part of the response and grounds of resistance would be appropriate and potentially a more proportionate approach, however the respondent’s unreasonable conduct of proceedings pervades all areas of the response and I therefore conclude partial strike out is not appropriate.

[76]The case must come to hearing and in all the circumstances and given the above and in light of the overriding objective I conclude that a less draconian sanction is not appropriate. For the reasons set out above I conclude that strike out is the proportionate and fair response. In the circumstances I strike out the respondent’s grounds of resistance in their entirety.

Relevant Law

[1]The respondent’s response was struck out by EJ Noons on 5 August 2022.

[2]As a result, the original full merits hearing was shortened and converted to this hearing before me by REJ Findlay under rule 21(2) Employment Tribunal Rules of Procedure 2013 (“rules”).

[3]The respondent has subsequently appealed the strike out decision. They made a written application to postpone this hearing on 16 September 2022.

[4]I determined that it was in the interests of justice to hear the respondent’s application under rule 21(3).

[5]The respondent was, effectively, asking for a stay of the proceedings pending the outcome of their appeal to the EAT.

[6]Why the application was not made sooner was unclear. Whilst it is reasonable to wait for the written reasons prior to any appeal, oral reasons had been given by EJ Noons and the respondent must have known of their intention to appeal.

[7]In delaying the application, it was inevitable that the claimant would be incurring further costs in preparation for this hearing.

[8]In any event, the claimant objected to the postponement application. Both parties referred principally to the overriding objective (rule 2) in support of their respective positions.

[9]The respondent conceded that the parties were on an equal footing by virtue of their representation.

[10]In relation to proportionality, the respondent argued that the case was both complex and important and, as a result, they should be heard and able to mount a full defence or we should, at least, await the outcome of their appeal.

[11]To allow the former would effectively overturn EJ Noons decision which is not within my power. It would also suggest that the tribunal’s power to strike out does not apply to complex cases.

[12]If the latter were permitted as of right, it would potentially allow unscrupulous respondents to significantly delay a just outcome for claimants by not complying with directions and appealing any sanction. For the avoidance of doubt, I am not suggesting that this was the case here.

[13]There was no dispute that the case was complex, with a 17-page list of issues. There were significant factual disputes and a schedule of loss claiming £1.2m.

[14]In addition, the claimant had been dismissed for gross misconduct, which was potentially career ending, with the respondent relying on what they said were serious child protection issues.

[15]All of those matters, of course, would have already been considered by EJ Noons. She concluded that a fair trial, in this trial window, was no longer possible. She was also concerned that the respondent’s history of noncompliance with tribunal orders and directions may continue.

[16]It is worth observing, at this stage, that, whilst the respondent was contending that a fair trial was not possible this week without hearing from their witnesses, they were not in a position to call any. In fact, despite being in possession of the claimant’s witness statement, they still have not provided any of their own.

[17]If I were to postpone, therefore, the respondent would have an unfair advantage at any future hearing before consideration of the potential disadvantages to the claimant of further delay.

[18]It was confirmed that it was always intended that there would be a split trial, not least because of the potential need for expert evidence, such as from one or more medical or actuarial specialists.

[19]The list of issues for this trial window did, however, include consideration of the potential arguments on Polkey and contributory fault.

[20]It was clear, therefore, that if I were to proceed to determine liability under rule 21 we would then need to list a remedy hearing in, I suspected, around 6 months.

[21]If I were to postpone, however, it was agreed that it was unlikely that we would receive a final determination from the EAT within 12 months and it was likely to be a further 12 months before this liability hearing could then be relisted, whether the respondent was then permitted to fully participate or not.

[22]There would still be a strong argument for a split trial and so, if the claimant were successful, it would still be likely to take a further 6 months before any outcome on remedy.

[23]As a result, whatever the outcome of the appeal, a postponement was likely to result in a two-year delay, or more, although that could, potentially, be reduced somewhat by a speculative listing now.

[24]Against that, clearly some expense could be wasted by proceeding now, albeit only if the respondent’s appeal is successful.

[25]That said, some preparation costs would be lost by a postponement.

[26]The costs of the first day have been incurred in any event. The costs of preparation that are likely to be lost by a postponement would be at least those of a day or, perhaps, two, whereas we are likely to be able to deal with liability and further directions in 3 days.

[27]The potential expense wasted by proceeding is, therefore, roughly the cost of 1 or 2 hearing days but this is only if the respondent’s appeal is successful. This was a risk the claimant was willing to take.

[28]The mere existence of an appeal, without more, would not generally be good grounds for a postponement. Indeed, to simply delay because of the appeal would make a mockery of the strike out decision which was, in part at least, due to numerous delays in compliance with directions.

[29]It is not for me to express a view on the merits of that appeal save to say that it appears arguable on both sides and does not appear to be merely a tactical approach or means of causing further delay.

[30]The complexity and importance of the issues remains whatever my determination.

[31]If I were to postpone, and the respondent were successful at appeal, they would not be prejudiced. They would, however, have the advantage of already being in possession of the claimant’s witness statement prior to preparing their own.

[32]It is also possible that the respondent’s history of non-compliance with directions would then be repeated.

[33]The only disadvantage in the event of a successful appeal would be the 1 or 2 days wasted costs of proceeding in this window. Whilst not insignificant, that is a small sum in the context of the costs (and exposure) as a whole.

[34]Against that, if the appeal is unsuccessful, the parties will be in the same position they are now but 2 years down the line. The current trial window would be lost.

[35]This would be a significant further delay for the claimant to receive any determination of the issues in the case, and any entitlement to compensation arising therefrom.

[36]In addition, the issues already go back 5 years and the background much further than that. A delay, therefore, could have a significant adverse effect on the cogency of the evidence.

[37]Moreover, such a delay may be more prejudicial to the claimant because, I heard, her mental health continues to be adversely affected.

[38]It is often the case that mental health only improves once an individual has achieved closure in relation to the issues in the case.

[39]Overall, therefore, the disadvantages of delay significantly outweigh the limited potential prejudice of proceeding and so the respondent’s application for a postponement is refused. The respondent’s participation

[40]Having determined that the rule 21(2) hearing should proceed, the respondent argued for full participation. That, as mentioned, would effectively render the judgment of EJ Noons a nullity and it is not within my power to overturn it.

[41]In any event, I heard that the respondent’s witnesses were not available and, furthermore, their witness statements had not even been exchanged so such participation was impossible in the trial window in any event.

[42]In circumstances where the respondent was unable to lead evidence, advance a positive case or address matters where the burden of proof rested with them, we discussed the extent to which they may be permitted to cross examine.

[43]On reflection, however, the respondent only sought to be able to provide what they termed a “road map” to assist me in walking the claimant through the list of issues, including with reference to their amended grounds of resistance and the documents, to establish whether her claims could adequately made out. They also requested the opportunity to contribute written submissions.

[44]I agreed that, given the complexity and importance of the issues, all of the claimant’s claims should not simply be upheld in a default judgment without, at least, some evidence being adduced from her and a level of checking and cross referencing to the documents.

[45]In those circumstances, as the claimant was going to be required to give her evidence and I was going to walk her through the list of issues to satisfy myself which of her claims were adequately made out, it seemed to me to be in the interests of justice to agree to the respondent’s requests.

[46]The road map would ensure that relevant matters could be put to the claimant to enable her to respond.

[47]Moreover, submissions would ensure the respondent had further participation and, hopefully, reduce any risk of miscarriages of justice. For example, they indicated that they wished to make robust submissions on jurisdiction and, specifically, time limits.

[48]The claimant, to her credit, did not raise any strong objections to these proposals.

[49]I would add that it was only in closing, after I had heard the evidence, that the respondent suggested that, even if their appeal were successful, any future tribunal would be bound by any findings of fact I may make.

[50]That is a submission that I do not accept. It will, of course, be a matter for the EAT whether they order a full rehearing, if the respondent’s appeal is successful. Rule 21 determination

[51]As this is a rule 21 hearing, it is not proportionate to make extensive findings of fact but, given the request for reasons, I have gone beyond a simple default judgment.

[52]I was able to agree most of the material background facts with the parties and then work through the list of issues, identifying which of the claimant’s claims could be made out and why.

Background

[53]The claimant commenced employment with the respondent on 1 April 2000. In the last years of her employment, she was a senior practitioner in one of their regional safeguarding units, working with children and young people at risk, under a team manager.

[54]The claimant’s professional regulatory body is the Health and Care Professionals Council (HCPC)

[55]It was accepted by the respondent that at all material times the claimant was disabled within the meaning of the Equality Act 2010 by virtue of her osteoarthritis. No other potential disability was contended for.

[56]Knowledge of the claimant’s osteoarthritis was also conceded.

[57]There was a long history of adjustments being requested and some being provided not least in relation to Dragon voice recognition software.

[58]It was initially provided in 2012/2013 but there apparently remained issues with its effectiveness, such as compatibility with the hardware/laptop, whether it could be used at home, the impact of background noise etc.

[59]The claimant was absent from work from April 2016 until February 2017 due to stress. During this period the respondent was “minded to dismiss” but the claimant was able to convince them that she would be able to return to work and be effective. She then took her accrued annual leave returning to work in April 2017.

[60]Following engagement with Access to Work, it was agreed that the claimant needed upgraded software and equipment.

[61]The claimant said that there were a few delays in the provision and uploading of the new software and then, initially, intermittent issues with the functionality but she acknowledged that, by February 2018, it was fully functioning, and she had received a couple of training sessions.

[62]It was suggested that the claimant needed one more training session, but she went off sick before attending. That said, it was her evidence that the dragon software was up and running by February 2018. Indeed, she felt that this may have been part of the reason that she was subsequently suspended.

[63]The claimant said that, once the software was functioning and she was able to use it, the respondent did not want to allow her sufficient time to show how this would improve her case progression and report writing. In those circumstances, there was no evidence of substantial disadvantage after February 2018.

[64]In any event, earlier in the period after the claimant’s return in April 2017, particularly latterly, the respondent was raising concerns with her that she was failing to progress cases appropriately. Similar concerns had, seemingly, arisen in earlier years, albeit the claimant put these down to earlier alleged failures to make reasonable adjustments that were part of the background to the issues in this case.

[65]The claimant’s evidence before me, in relation to 2017 /18 was that she eithera. had progressed cases appropriately but there may have been delays writing them up due, she said, to her difficulties typing without adjustments or

b. there were disagreements with her manager about when files should be closed or required no further action which, at the very least, affected their priority

[66]The claimant said that her workload was higher than other senior practitioners, but the evidence did not bear that out. That said, it was often higher than the maximum level she said she had been promised. The claimant also said that she had additional duties as a senior practitioner.

[67]She felt that her workload was excessive and that this was made worse by her disability and her difficulties writing.

[68]In November 2017, the claimant had a new line manager, AM. She said AM was aware of her need for dragon software but not the history of the matter. She also said she believed AM was the driving force behind her subsequent treatment.

[69]The respondent conceded that AM assaulted the claimant, on 9 January 2018, by grabbing her shoulder and shaking her.

[70]On 17 January 2018, the claimant was called into a lengthy supervision meeting at which a number of the respondent’s concerns about case progression were discussed. The possibility of a performance improvement plan was apparently raised.

[71]On 24 January 2018, the claimant alleged that she was undermined by AM when a social worker, who had covered her leave over the Christmas / New Year period was removed from a handover meeting the claimant had asked him to attend.

[72]On 25 January 2018, the claimant reported the assault.

[73]On 6 April 2018, the claimant was suspended. The allegations remained in relation to alleged failures to progress her cases, but it was stated that these were potentially exposing children to harm, such that they were now being treated as potential gross misconduct.

[74]The claimant was signed off sick with stress the same day and never returned to work.

[75]An investigation was undertaken and the respondent took the view that the claimant failed to engage in the process, although she said she was unable to because of her mental health.

[76]It was only once an Occupational Health (OH) report was sought and produced in April 2019, however, that advice was obtained suggesting that the claimant could engage in the process but only with several adjustments, such as principally participating in writing.

[77]The claimant did then submit a lengthy written response. This led the respondent to commission a 2nd investigation.

[78]The claimant submitted written objections to the second investigation report also.

[79]The claimant was invited to a disciplinary hearing on 6 November 2019 which proceeded in her absence. The respondent sought to characterise the claimant’s absence as a matter of choice, notwithstanding the occupational health report.

[80]All of the allegations against the claimant were upheld individually as gross misconduct when, on the face of it, the majority appeared to be failures to progress or adequately record her work in circumstances where there was no dispute that workloads were high. That said, there was a reference to refusing to obey reasonable management instructions in relation to at least a couple of the children.

[81]The claimant was dismissed summarily by letter dated 19 November 2019 and it was stated that the respondent had an obligation to report the findings to the HCPC.

[82]The respondent’s pleadings confirmed such a report, albeit the claimant had heard nothing further. Before me, however, the respondent asserted that no such report had been made.

[83]The claimant was given the right to appeal and did so, attending the appeal hearing by telephone. The appeal was rejected by letter dated 17 February 2020. The issues and their determination

[84]As already mentioned, it was not in dispute that the claimant was a disabled person at all material times by virtue of her osteoarthritis. Knowledge was also not in dispute.

[85]I was reminded that other conditions, including relating to the claimant’s finger or her mental health were not pleaded disabilities.

[86]The first item in the list of issues was in relation to an alleged failure to make reasonable adjustments and, specifically, an allegation that the claimant was put at a substantial disadvantage by virtue of the respondent’s failure to provide an auxiliary aid, that being Dragon software or an administrator to carry out her typing.

[87]In relation to the latter, the claimant suggested that she would need around 15 hours per week just to keep up with the priority work. It seemed to me that could easily cost around £10,000 per annum and so it was unlikely to be reasonable.

[88]However, that would become academic if, as claimed, the Dragon software could remove the disadvantage. The claimant said the software would reduce her writing time by 60%

[89]It was not in material dispute that typing was slower and more painful for the claimant and so she would be at a disadvantage compared to nondisabled comparators.

[90]It was clear that at various times Dragon software was provided but there were delays in relation to the necessary upgrades in 2017 and it was the claimant’s evidence that she did not consistently have fully functioning software on which she was trained until around February 2018.

[91]Prior to that point the claimant’s case was made out but there was no substantial disadvantage thereafter. She was, in any event, off sick from April 2018.

[92]On that evidence, therefore, the allegation would be out of time unless it formed part of a continuing course of conduct.

[93]On the claimant’s case it did so in 2 key respects. Firstly, the claimant said that the absence of the Dragon software caused or contributed to her failures to progress certain case files and it was those alleged failures that led to the disciplinary proceedings against her which led to her dismissal.

[94]In addition, it was the claimant’s case, or at least her belief, that her need for adjustments and her difficulties coping with workloads in their absence were the real principal reasons for her dismissal.

[95]As a result, there was evidence that the failure to make this adjustment sooner did amount to the start of a continuing course of conduct such that the complaints were not presented out of time.

[96]In any event, on the claimant’s evidence, the reasons for her delay were her ill-health and poor advice from her union which would make it just and equitable to have extended time. The respondent was unable to call evidence and so there could be little prejudice in relation to the delay, save in relation to having this part of the claim brought at all, but in circumstances where they have been aware from the outset that it was a central element of the claimant’s response to the allegations against her.

[97]The next claim for an alleged failure to make reasonable adjustments was, effectively, the same claim put a different way.

[98]It was not in dispute that the respondent applied a provision criteria or practice of requiring typed, written work.

[99]It was also clear that there was a requirement for senior practitioners to carry a full caseload, potentially even beyond the recommended maximum.

[100]The claimant’s difficulties with typing up reports etc would put her at a substantial disadvantage in those circumstances.

[101]The claimant’s case was that the fully functional Dragon software with training would have removed the disadvantage and so I do not need to consider any other proposed adjustments.

[102]That said, an additional part of the alleged disadvantage was that the claimant’s performance (and, potentially, conduct) was assessed in relation to a period when she said the reasonable adjustments were not in place.

[103]In those circumstances, to avoid the disadvantage, the claimant said that a further necessary adjustment was that she should not have been assessed until the fully functional software was in place and I accept that this also appeared to be reasonable.

[104]Again, there was a clear link between the adjustments and subsequent events such that no time limit jurisdiction points arose.

[105]The claimant’s claim of indirect disability discrimination is dismissed on withdrawal.

[106]In relation to the claimant’s claims under s15 Equality Act 2010 it was clear that, on her case, the meeting on 17 January 2018, at which performance concerns were discussed, arose, at least in part, because of delays in producing her written work. Those delays arose, at least in part, because she did not have fully operational dragon software to ameliorate the adverse effect of her disability on her typing ability.

[107]In those circumstances she has given evidence as to facts from which I could conclude that unfavourable treatment had taken place because of something arising in consequence of her disability.

[108]The respondent cannot show that their actions were not tainted with discrimination nor could a positive case on justification be advanced, so this claim must also succeed.

[109]Similarly, the claimant alleged she had been threatened with a performance improvement plan and a report to the HCPC at the same meeting. Whilst I note this was disputed on the facts by the respondent, in the absence of evidence to the contrary, I had no reason not to accept the claimant’s evidence. Indeed, the former seemed likely in the context presented.

[110]The claimant gave evidence that she was subject to further unfavourable treatment in a meeting in February 2018 which I accept and uphold as part of the course of conduct for similar reasons.

[111]It was a central element of the claimant’s case that the subsequent disciplinary proceedings and her dismissal amounted to further unfavourable treatment arising in consequence of her disability. Specifically, she said that this was because she could not complete all her work tasks in time due to her typing being slower and fully functional Dragon software not being available at the relevant time.

[112]It is clear that at least some of the allegations did, as claimed, relate to alleged failures in relation to report writing or updating the system and, indeed, delays in these areas may have impacted the claimant’s other duties, child visits etc.

[113]There was some evidence that the claimant had been instructed to produce certain children in need plans that she did not consider to be necessary. This was characterised by the respondent as a refusal to obey a lawful instruction.

[114]However, whilst the claimant acknowledged that she had been instructed to produce these plans and had not done so, she said that this was because, in the specific circumstances, they were not essential and so she had placed them as a low priority, rather than refusing.

[115]She also said that she had been proved right and the files were subsequently closed.

[116]As a result, it was not implausible that all of the allegations against the claimant were in some way related to difficulties writing reports arising from her disability.

[117]Having established those facts, the burden of proof would shift to the respondent to show that their actions were in no way whatsoever tainted with discrimination and, being unable to call any evidence, they were unable to do so.

[118]Reporting the claimant, as a result of the above, to the HCPC, was also capable of amounting to unfavourable treatment although I accept the respondent’s submission before me that, in fact, contrary to their pleaded case, no such report was made.

[119]Nonetheless, telling the claimant that such a report had been, or was going to be, sent, were still capable of amounting to unfavourable treatment and, as above, was the culmination of a chain of events that arose from her disability.

[120]Moreover, the respondent would have been obliged to report the claimant for gross misconduct and/or serious safeguarding concerns. The fact that they did not do so may well support the claimant’s position that she was not only not guilty of gross misconduct, but the respondent did not genuinely believe that she was.

[121]The allegations of unfavourable treatment starting with the allegations of performance failings on the part of the claimant all the way through to her dismissal were clearly related and part of a course of conduct, notwithstanding the different individuals involved as they all stemmed from the same information produced by the claimant’s managers.

[122]In relation to the victimisation complaints, the numerous alleged protected acts were not in dispute, having been conceded by the respondent.

[123]However, the claimant’s evidence before me was that the driving force behind the allegations against her was AM.

[124]Whilst AM was aware of the claimant’s need for software, shortly after her arrival as an agency manager in November 2017, the claimant acknowledged that she had no reason to believe that AM was aware of any of the history of her requests for reasonable adjustments.

[125]In those circumstances, the case was not made out that the allegations the claimant made about the meeting on 17 January 2018 were because of previous protected acts.

[126]As identified previously, the matters discussed at that supervision meeting arose from failings to progress certain case files. Failings that were, in part, acknowledged by the claimant, albeit she attributed them to ongoing difficulties with the dragon software.

[127]The evidence showed, however, that the respondent appeared to escalate matters after the 17 January 2018 meeting in which the claimant had raised concerns about her reasonable adjustments not being in place.

[128]Specifically, it appeared that the respondent was initially treating the claimant’s alleged failings as performance matters but, subsequently, this was escalated to treating them as gross misconduct.

[129]In the absence of evidence from the respondent, therefore, the claimant has established facts from which I could conclude that there was a causative link between her raising concerns (in January and March 2018) that her reasonable adjustments had not been fully implemented and the subsequent alleged detriments right through to her dismissal and purported HCPC report.

[130]The claimant withdrew her complaints of harassment.

[131]I next considered the claimant’s health and safety detriment complaints.

[132]I was surprised that the respondent, as a local authority, had not, in their pleaded case, suggested that the claimant should have raised her concerns with a health and safety representative or committee. Rather, they had conceded that the claimant had raised a valid health and safety concern in relation to the assault by AM.

[133]In any event, the claimant gave evidence that she was unaware of any such representative or committee and, indeed, that she had raised the matter with her union and they also had not pointed her in such a direction.

[134]In raising the issue of assault, the claimant was, as the respondent accepted, bringing to her employer’s attention by reasonable means circumstances connected with her work which she reasonably believed were harmful to health and safety.

[135]If there had been a health and safety representative or committee, given that neither the respondent nor the claimant union were seemingly aware of them it would not have been reasonably practicable for the claimant to have raised the matter by those means.

[136]That said, it was established that the claimant first raised her concern by email to KJ on 25 January 2018.

[137]In those circumstances, the alleged detriments that preceded 25 January 2018 cannot have been on the ground that the claimant raised the issue.

[138]The subsequent detriments could have been so caused and not just by virtue of the timing. As previously mentioned there appeared to be an escalation thereafter, albeit unknown to the claimant until her suspension with issues that were previously being addressed as ones of capability were to be treated as potential gross misconduct and, ultimately, were upheld as such.

[139]In the absence of any evidence explaining that change in direction, the claimant’s claims for detriment, after 25 January 2018, are, therefore made out. There is no reason why both the previous protective acts and the health and safety concern could not both contribute to causation.

[140]Whilst academic, my conclusions are the same regarding the whistleblowing detriment claims.

[141]I would acknowledge that the initial alleged disclosure did not specifically raise any wider public interest concerns. However, the respondent had conceded that it was a protected disclosure and the claimant’s evidence was that, whilst personal in nature, she did reasonably believe, when making it, that there was a wider public interest in addressing an assault by a senior social worker.

[142]That latter point was reiterated by the claimant in her response to the disciplinary investigation the following year.

[143]The other elements required to make a disclosure protected were made out.

[144]It was, perhaps, surprising that the respondent did not appear to have taken any action in relation to the assault despite conceding that it had taken place. Whilst very different to the allegations against the claimant it did potentially indicate differential treatment.

[145]In relation to the claimant’s claim of unfair dismissal, the respondent had said that the potentially fair reason was conduct. The burden is on them to show the potentially fair reason and they have failed to do so.

[146]As a result, the claimant was unfairly dismissed. There may have been other failures, procedural or otherwise, but that is academic.

[147]In any event, the claimant disputed that any of the allegations against her could have amounted to gross misconduct.

[148]She did, however, accept that there had been some issues with her case progression, or at least the appropriate recording of the same, albeit she put that down to not having her reasonable adjustments properly in place at the relevant time.

[149]The claimant also acknowledged that she had not progressed 3 children in need plans that she had been instructed to do even though she felt they were unnecessary.

[150]The respondent had sought to characterise this as a refusal to obey a lawful instruction. The claimant denied this saying that she had carried out an initial review and met the relevant agencies and determined that the cases were low risk or required no further action. As a result, she had not refused but had determined that they were low priority and had been focusing on what she considered to be more pressing matters.

[151]On the claimant’s case, therefore, the issues could only reasonably be characterised as ones of capability and, indeed, ones that were impacted by the absence of fully functional Dragon software at the relevant time.

[152]It also appeared that, had the respondent genuinely believed the claimant to have been guilty of gross misconduct putting children at risk they would have been obliged to report the issues to the HCPC and they had not done so.

[153]It was the claimant’s evidence before me that she believed the principal reason for her dismissal was her need for adjustments, the fact she continued to raise her need for these and the challenges she’d had with workloads and case progression as a result.

[154]That seemed to me to be both plausible and in accordance with the main thrust of her claims of discrimination and victimisation.

[155]In those circumstances, the case was not made out that the principal reason for her dismissal was the raising of health and safety concerns and/or the making of one or more protected disclosures even though they appeared to have played a part, consciously or otherwise, in the escalation of matters.

[156]The claimant’s claims of automatic unfair dismissal under sections 100 and 103A Employment Rights Act 1996, therefore, fail.

[157]The respondent could not establish that the claimant had committed gross misconduct amounting to a fundamental breach of the contract of employment. As a result, the respondent was not entitled to summarily dismiss the claimant and her claim for wrongful dismissal succeeds.

[158]The list of issues for this hearing included consideration of Polkey and contributory fault.

[159]It would be for the respondent to show the latter and, having been struck out and adducing no evidence they were unable to do so. In any event, the evidence I did see and hear suggested the issues were better characterised as performance concerns.

[160]As the dismissal was substantively unfair, any issues in relation to what might have happened had any procedural failings been rectified, did not arise.

[161]That is not to preclude, at this stage, consideration of other ways in which the claimant’s employment may have come to an end subsequently, whether through choice, ill-health, a capability procedure or otherwise.

[162]I have, therefore, given directions for the respondent to set out their position in relation to the arguments they would seek to make at a remedy hearing so that further directions may be given for such a hearing and a determination made in relation to their future participation .