Mr S Green v Governing Body of Newbridge Primary School and Bath and North East Somerset Council: 1404756/2020
EMPLOYMENT TRIBUNALS
Case No 1404756/2020
Between
Mr S GreenClaimantGoverning Body of Newbridge Primary School and Bath and North East Somerset CouncilRespondent
Before
Employment Judge ChristensenMs Winstone (instructed by Counsel) for respondentDate 15 August 2022
JUDGMENT
[1]The COT 3 entered into between the parties on 20 March 2019 is effective.[2]The claimant is estopped from pursuing the complaint under S15 Equality Act set out at paragraph 4.1.1 of the Order of Judge Midgely dated 29 April 2021[3]The claimant is estopped from pursuing the complaints under S15 Equality Act set out at paragraphs 4.1.2, 4.1.3 of the Order but only in relation to events that took place before 20 March 2019. JUDGMENT having been sent to the parties on 11 October 2021 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]Whether the claimant is estopped from pursuing any claim prior to 20 March 2019 as a consequence of the COT 3 agreement made with the respondent, if any such claim is still pursued?[2]It is clarified and agreed that this now relates only to the S15 claims set out in para 4 of the Order of Judge Midgely.[3]There are 4 complaints of unfavourable treatment set out at para 4.1 in the order of Judge Midgely dated 29-4-21. The parties respective positions Respondent[4]The position of the respondent is that the COT 3 is fully effective and should not be set aside. The respondent’s position is that 4.1.1 is distinguishable from the other 3 S15 complaints in that it relates to a decision made prior to the COT 3 agreement being entered into on 20 March 2019. That decision was to allocate the claimant the art room for the use of his music lessons. In that sense, says the respondent, the claimant is estopped from pursuing that claim in its entirety. 4.1.1 refers to the allocation of the art room from 21 February 2019 to 6 March 2020.[5]In relation to 4.1.2, 4.1.3 the respondent’s position is that the COT 3 agreement is effective to mean that the claimant may not pursue those claims in relation to events prior to 20 March 2019, but that he may otherwise pursue his claims in relation to each of them. 6. 4.1.2 relates to events relating to the dissemination of school telephone numbers from 21 February 2019 to 6 March 2020. The respondent’s position is that the COT3 is effective to mean that the claimant may not pursue that claim in relation to events prior to 20 March 2019 but may otherwise pursue that claim. 7. 4.1.3 relates to a failure to ensure the access ramp was maintained properly in the period 21 Feb 2019 to 6 March 2020. The respondent’s position is that the COT3 is effective to mean that the claimant may not pursue that claim in relation to events prior 20 March 2019 but may otherwise pursue that claim. 8. 4.1.4 refers to a failure from January 2020 to March 2020 to ensure the disabled car parking space was properly maintained. The estoppel point is not engaged there. Claimant[9]The position of the claimant is that the COT 3 is ineffective on the basis of two counts of misrepresentation, that it was unfair and confusing and contrary to government policy regarding employment rights. Evidence[10]To determine the issue I took evidence from Ms Phillis an ACAS conciliation officer. Ms Phillis attended under a witness order requested by the respondent but attended as a reluctant witness and without a witness statement. I also took evidence from Ms Matson an HR Consultant appointed by the respondent and the claimant. I took evidence from the claimant. I considered a number of documents in the bundle.[11]I was assisted by written submissions from both parties which were augmented orally by each of them. Reasonable Adjustments[12]Before the hearing started I reviewed the reasonable adjustments requested by the claimant to ensure that these were adhered to during the hearing.
Findings of Fact
[13]The claimant was a music teacher at R1, he had worked in that capacity since 2013. Towards the end of 2018 the R1 proposed that the claimant should pay a room charge for his lessons. This caused the claimant to contact his musicians’ union to take advice. He also contacted ACAS. He was concerned that this may be a breach of his worker rights and may be disability discrimination.[14]The contact with ACAS caused a period of conciliation between the respondents and the claimant as a way of avoiding the claimant needing to start proceedings in the ET.[15]A COT 3 was entered into on 20 March 2019. That COT had appended to it an agreement which is referred to in the COT 3 as a Facilities Agreement. It included terms on which the claimant would hire a room from R1, the terms of the agreement, termination provisions, the conditions of use of the room and set out that the claimant’s status was that of someone providing services on his own account as an independent contractor.[16]The claimant had contact with ACAS by email, by phone and went to a meeting attended by Ms Phillis on 21 February 2019. He went to that meeting with his union representative but his representative was denied permission to attend the meeting. The evidence of Ms Matson is that her understanding was that this was because his attendance had not been pre arranged. Ms Matson also attended that meeting as the R1s representative.[17]There is a disagreement between the claimant and respondent regarding what was discussed at that meeting. I am satisfied that the notes at B93 set out the gist of what was discussed at the meeting. Those are notes prepared by Ms Matson.[18]The claimant has explained that as a result of his disabilities and in particular his dyslexia his processing abilities are impacted such that he finds it difficult to remember things that are said. He has poor memory. I am satisfied that he is a witness who was often inconsistent in his evidence and unreliable in his memory, his evidence was confused and confusing. His recollection of events appeared to vary on a number of occasions. That is not a criticism of the claimant as I recognise this is likely to be a manifestation of the disabilities from which he suffers and I also recognise that as a litigant in person the process of the ET can be stressful and this in turn can cause people to become confused.[19]An example is B24 which is an email from Ms Phillis at ACAS to Ms Matson, before the finalisation of the COT3 and in which she puts forward a number of points argued for by the claimant. She uses language which makes it clear she is putting forward points argues for by the claimant. “He is happy to pay £20 a week….which he feels reflects the current state of the school’s facilities – alternatively instead of paying a set fee for room hire he would be happy to pay a suggested donation toward the general upkeep of the school – the claimant has informed me that he would be happy to pay £30 per week however he would want the settlement sum increased to £7,500”.[20]The claimant’s position is that he never had discussions with ACAS on that basis and did not agree with what is set out in that letter. I consider it wholly implausible that Ms Phillis, as an experienced ACAS conciliator, would have put forward such proposals on behalf of the claimant unless those proposals came from him.[21]Instead I am satisfied that the claimant has become confused and has forgotten what he said to ACAS at the time. I find that he did represent that as his position to ACAS.[22]Following receipt of the draft COT 3 and appended agreement the claimant chose not to take any advice from his union or the union’s solicitors – I am satisfied that it was genuinely a choice by him. He told me in evidence that he had solicitors available to him after filling in forms but that he did not contact them or his union rep to seek their advice on the terms of the COT 3 and appended agreement because sometimes they did not respond very quickly.[23]I do however consider it relevant that his union rep had travelled to Bath to attend the meeting with him and that tends to indicate that he was engaged with supporting the claimant. It was of course was the claimant’s choice at the time but I am satisfied that that his decision not to follow up these forms of support and advice is likely to have contributed to the sense of confusion that he felt regarding the terms of settlement.[24]The claimant told me in evidence that when he signed the COT 3 and appended Hire Agreement he thought that they had force together with everything that had been agreed at the ACAS meeting on 21 February. He argues that he never agreed to an agreement in which any hire charge would be paid. I regard that as simply unbelievable and reject his evidence in that regard. I prefer the evidence of Ms Phillis that she was at all times putting forward his case to the respondent. The claimant is an intelligent man and well placed, notwithstanding what he has told me about his disabilities, to understand that the terms of the agreement were all placed in the COT 3 and Hire Agreement. They are very clear on this point even taking into account that they are couched in legal language. He signed the document knowing that that term was included. Had the claimant struggled to understand any terms he was well placed to have either told Ms Phillis this at the time (which he did not do) or to refer it to his union rep or the solicitor at the union that he told me was available to him. Neither did he do this. Submissions[25]The claimant has submitted that he was subject to misrepresentation on two counts. I reject such a notion.[26]On the first count he argues that it is relevant that BANES Logo for R2 was absent from the legal documents. I see no relevance in this point. He argues that the BANES legal team were not involved in the preparation of the COT 3. I see no relevance in this point. Neither do I see any relevance in points 5,6, or 7 under the first heading of misrepresentation. I am not satisfied on any of those bases that it would be proper to conclude that there has been any misrepresentation.[27]The second head of misrepresentation refers to the references in the COT3 to the fact that the claimant was not in an employment relationship. He argues that was against government policy and mispresents the nature of the appended Hire Agreement. I see no validity in these arguments. The documents say what they say: they make it clear that the intention is that the claimant will not have employment status.[28]The third head is that the COT 3 was unfair confusing and caused problems for both sides. There are 7 points made. In my judgment, the only potential point of validity is that the claimant’s union representative was made to wait outside the meeting that took place on 21 February. I have not been satisfied that there was any proper basis for that. The fact that the claimant had not pre arranged the attendance of his union rep does not seem a good reason to deny him his presence in that important meeting. However I am also satisfied that of itself this does not undermine the COT3. It is relevant that the claimant had every opportunity of following up with his union representative and/or his union solicitor after the meeting had he chosen to do so. He has not satisfied me that he has any proper reason not to do so. I do not therefore consider that the denial of the attendance of his union rep at the ACAS meeting undermines the validity of the COT 3 when signed by the claimant.[29]I note at 3.5 that the claimant wishes to argue that his previous contract was still valid. To the extent that the terms of his previous contract are relevant to whether or not he held employment status under the Equality Act at the relevant time, is a matter for fact finding and consideration at the Preliminary Hearing on 13 & 14 January 2022.[30]I accept and adopt the approach argued for by the respondent in their submission on this issue. They start at p4 of Ms Winstone’s submissions and are called issue 4. Those set out what I accept is a the proper approach to the issue of estoppel on the facts.
Background
[1]The claimant has applied for a reconsideration of the judgment dated 14 February 2022 which was sent to the parties on 17 February 2022 (“the Judgment”). The grounds for reconsideration are set out in the claimant’s email dated 18 February 2022. That letter was received at the tribunal office on the same date.[2]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”). Under Rule 71 an application for reconsideration under Rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. [The application was therefore received within the relevant time limit].[3]Under Rule 5 the Tribunal may, on its own initiative or on the application of a party, extend or shorten any time limit specified in the Rules or in any decision, whether or not (in the case of an extension) it has expired.[4]The grounds for reconsideration are only those set out in Rule 70, namely that it is necessary in the interests of justice to do so.[5]The grounds relied upon by the claimant are these and I respond to each in turn.[6]The Tribunal is obliged to make it clear that the claimant understands. He refers to the importance, which I entirely recognise, of the tribunal taking care when a litigant in person requests a withdrawal. The claimant refers to the case of Campbell-v-OCS Group and sent a copy of that case with his application. In that case an unrepresented claimant withdrew her claim after the start of the hearing citing ill health and medical advice. The claim was dismissed on withdrawal. The claimant sought reconsideration of the dismissal judgment on the basis that her withdrawal was involuntary. In that case the EAT allowed an appeal on the basis that the tribunal ought to have considered and addressed the dismissal decision and the question of whether there were reasonable prospects of it being varied or revoked.[7]I am satisfied that Mr Green’s withdrawal was in no sense involuntary. He signalled his wish to withdraw on several occasions in writing before the hearing and these are set out in my dismissal judgment. It was a considered application. He understood that the consequence of that would in the normal course, be a dismissal unless there were legitimate reasons not to dismiss (Rule 52 (a)) – this is established by his application making it clear that he wished his claim to not be dismissed. I took care to consider, whether on the basis of the totality of the information before me, I could identify any legitimate reason for not dismissing and, as my judgment sets out, I was satisfied that there was no such reason. Further I addressed the issue of whether it would not be in the in the interests of justice to dismiss.[8]Equal Treatment Bench Book. Whilst recognising the significant importance of the ETBB I am also satisfied that the tribunal’s communication with the claimant was clear. Further the tribunal ensured that all reasonable adjustments were checked and offered as set out in my judgment.[9]Confusion/What is a hybrid hearing. I do not accept that there was any confusion regarding whether the hearing was going ahead. The tribunal correspondence was clear and I am satisfied from the claimant’s emails of 13th and 14th February confirm that he knew a hearing was proceeding on 14 February. In the first he objects to the hearing proceeding and in the second he confirms that he will not be attending the hearing. Neither gives any indication that he was confused about whether it would go ahead. The claimant was reassured by the tribunal on 11 February that he may attend in person and guidance was sent to explain hybrid hearings. If the claimant was confused regarding what was meant by a ‘hybrid’ hearing, as he sets out in his application, any such confusion could have been raised by him at the start of the hearing.[10]The claimant was ill on the day of the hearing. The claimant’s emails of 13 & 14 February were considered by me on the day but in the absence of an application to adjourn or any medical evidence from the claimant to support any such application the hearing went ahead. My judgment sets out that the claimant apologised for not attending but did not request an adjournment on medical grounds.[11]Further autism emails. These were not before me at the hearing.[12]New Claims. If the claimant wishes to present new claims that is a matter for him. It does not create a proper basis to now reconsider my the dismissal of his claims for disability discrimination.[13]The matters raised by the claimant were considered in the light of all of the evidence presented to the tribunal before it reached its [unanimous] decision. The Employment Appeal Tribunal (“the EAT”) in Trimble v Supertravel Ltd [1982] ICR 440 decided that if a matter has been ventilated and argued then any error of law falls to be corrected on appeal and not by review. In addition, in Fforde v Black EAT 68/60 the EAT decided that the interests of justice ground of review does not mean “that in every case where a litigant is unsuccessful he is automatically entitled to have the tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order”. This is not the case here. In addition it is in the public interest that there should be finality in litigation, and the interests of justice apply to both sides.[14]Accordingly I refuse the application for reconsideration pursuant to Rule 72(1) because there is no reasonable prospect of the Judgment being varied or revoked.
Background
Background
[1]The respondent’s application for costs is made under Rule 76(1)(b). It was made in writing on 21 March 2022 and appears at page A104 in the bundle.[2]I was presented with 2 bundles and referred to relevant documents in both of them when taken there by the parties.[3]At the outset of the hearing I had a discussion with the claimant regarding what reasonable adjustments he would like to have in place. He confirmed that he wanted regular breaks and was having problems with his medication given the current heatwave. I asked him whether he would like breaks at regular intervals and/or whether he would like to tell me when he wanted breaks. He asked to be given a break every 90 minutes and I confirmed that this would be accommodated. I asked the claimant’s wife and Ms Winstone to remind me to give the claimant a break every 90 minutes. I also reassured the claimant that if he wanted a break at any other time to tell me.[4]The respondent’s application for costs set out the chronology of events relied upon and refers to threats and intimidation, unreasonable tactics in conduct of proceedings. It is costed at a total of £11,450. I do not recite those various heads in these reasons in any detail.[5]The claimant has provided some written details of his income and I accept these at 174 in the bundle. He also told me orally about receipt of Personal Independence Payment (PIP) from DWP. These assist him in purchasing equipment to assist with his disabilities; such as specialist software and a mobility scooter. I have not taken the receipt of PIP into account under Rule 84, in determining the claimant’s ability to pay, both in terms of whether to make a costs order and also in what amount.[6]I have been referred to the case of Yarrakalva-v-Barnsley Metropolitan Council [2012] ICR 420 and the case of Godwin-v-United Kingdom Atomic Energy Authority which makes reference to Yarrakalva.[7]Yarrakalva assists in guiding me to look at the whole picture. I must ask myself whether there has been unreasonable conduct by the paying party in bringing, defending, or conducting the case and in so doing, identify the conduct and what was unreasonable about it and what effect it had. The use of the word unreasonable required a high threshold to be passed when a costs order is made.[8]By reference to the various heads of conduct identified by the respondent I have been satisfied that that high threshold has been met but only by reference to the costs incurred by the respondent by having to attend the hearing on 14 February. Those costs are in the sum of £2750, the conduct of the claimant that led to that hearing taking place was, in my judgment, unreasonable and meets the high threshold.[9]I make no order in relation to any of the earlier conduct of proceedings by the claimant. Whilst recognizing that the way in which the claimant has pursued his claim against the respondents has caused difficulties for the respondent’s solicitors, staff and governors – when looking at the whole picture I am not satisfied that earlier conduct meets the threshold for an order to be made.[10]In reaching this conclusion I consider it relevant that that it is my judgment that the claimant holds a genuine sense of injustice regarding the events that led to the ending of his work contract. He has however struggled to advance his sense of injustice within the scope of a claim under the Equality Act. It is relevant that he is an unrepresented litigant with multiple complex disabilities that affect his communication and processing abilities. The complexities of his disabilities cannot be fully understood by the tribunal or the respondent, but I recognize they exist. They include dyslexia with associated memory problems and scotopic sensitive, clinical depression, general anxiety disorder and ADHD. The claimant is currently awaiting an autism assessment. I make reference to this in paragraph 18 of my judgment arising from the hearing in September 2021.[11]The respondent seeks to characterize the claimant’s actions as a planned campaign of bullying against the respondent as a way of trying to force them into settlement. The information before me from the claimant’s wife in her letter of 11 July 2022 sets out that in her view his behaviour in the litigation is influenced by his disabilities. Without more I note the different positions and accept that either could be right. However, given the high threshold required to make a costs order I have not been satisfied that I can conclude that threshold is met by reference to Rule 76(1)(b) when considering conduct of litigation prior to February 2022.[12]The chronology of events leading to the hearing in February are well documented and set out in my judgment of 14 February 2022. I recite them no further here. Suffice to say that I am satisfied that the claimant’s conduct on that occasion was unreasonable such that I am satisfied that the high threshold is met. I exercise my discretion to award the respondents the costs they incurred by reference to attending that hearing. It was listed to determine the preliminary issue of whether the claimant met the definition of employee within the Equality Act. If not an employee within the Equality Act the claimant would have no locus to pursue his claims; it was a determinative preliminary issue.[13]The hearing did not proceed to determine that issue. The claimant wrote to the tribunal on 7 January to withdraw his claim but at the same time requesting that his claim not be dismissed.[14]In and of itself I do not consider the decision to withdraw the claim unreasonable. It is the actions of the claimant in withdrawing and asking for the claim not to be dismissed that required that the hearing take place. His unusual request created a situation in which a forum was necessary to let him advance his application for non-dismissal. The claimant was told in clear terms by the Tribunal that the hearing listed on 14 February would no longer determine the preliminary status issue but would instead enable him to make his application for non-dismissal.[15]The claimant was offered the possibility of applying for a stay of proceedings by EJ Midgely but the claimant rejected that possibility.[16]The claimant failed to attend the hearing on 14 February at very short notice. The events surrounding that failure to attend are set out in my judgment of the same date.[17]From all of the information available to me I am not satisfied that the claimant had any proper reason not to attend the hearing to advance his application. His actions were unreasonable in that they put the respondents to cost in having to attend that hearing. His conduct meets the high threshold required for me to award the respondents the costs they incurred in attending that hearing.[18]Taking into account the claimant’s ability to pay I am satisfied that it is appropriate to make a costs order against the claimant and in favour of the respondents in the sum of £2750. Claimant’s application for a Preparation Time Order (PTO)[1]The claimant’s application for a PTO is made under Rule 76(1)(b). It was made in writing and appears in the bundle at pA123.[2]It sets out 8 areas in which the claimant argues that the conduct of the respondent was unreasonable such that a PTO order should be made in his favour. I do not recite them in any detail in these reasons. These were considered in turn in the hearing.[4]Most of the events relied upon by the claimant do not however relate to the conduct of litigation but instead refer to the actions of the respondents in the work place. These are therefore not examples of conduct of proceedings that can support an application for a PTO.[5]The examples that did relate to the conduct of proceedings do not, in my judgment, get anywhere close to the threshold required to establish unreasonable conduct of proceedings by the respondents such that I consider it appropriate to exercise my discretion to order a PTO in the claimant’s favour.[6]Of the examples given I focus on those that did relate to the conduct of proceedings by the respondent.[7]One is an example of directions being complied with a day late by the respondent, another is an error made by Ms Winstone in mistakenly sending an email to the claimant that was intended for her instructions solicitor and another is the respondent not telling the claimant in advance of a hearing, in terms, who would be present at the hearing.[8]Such conduct by the respondent does not in my judgment meet the threshold required to establish unreasonable conduct of proceedings. That one party has complied with directions a day late, in any of itself, is not unreasonable conduct. Nothing appeared to flow from that late compliance. The mistaken email clearly confused the claimant but I accept it was a mistake by Ms Winstone and once she realised her mistake she took immediate steps to call back the email and confirmed to the claimant that it was sent to him in error. I accept that it is important for the claimant to have a good understanding of what was going to happen at each hearing, in light of his disabilities I accept that he becomes stressed when he does not know this in advance. However I am not satisfied that the actions of the respondent were in any sense unreasonable conduct in accordance with Rule 76(1) (a).