Miss P Sullivan v Isle of Wight Council: 1406053/2020

EMPLOYMENT TRIBUNALS

Case No 1406053/2020

Between

Miss P SullivanClaimant

Isle of Wight CouncilRespondent

Before

Employment Judge Goraj

Date 4 January 2022

JUDGMENT

[1]The Tribunal does not have jurisdiction to entertain the claimant’s complaints of protected public interest disclosure detriment pursuant to sections 47B, 48 and /or 49B of the Employment Rights Act 1996, which complaints are therefore dismissed.

[2]The Tribunal has jurisdiction to entertain the claimant’s complaint of victimisation pursuant to sections 27 and 39 of the Equality Act 2010 (in respect of Issue 7.3.2 – the refusal to allow the claimant to pursue an appeal under the respondent’s complaints procedure).

[3]The respondent’s applications for the striking out of the claimant’s claims and/or the award of a deposit order pursuant to Regulations 37 and /or 39 of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 are dismissed.

[4]The claimant’s extant claims of direct sex discrimination/ victimisation pursuant to sections 13, 27 and 39 of the Equality Act 2010 (Issues 5.3.1, 5.3.2,7.3.1 and

7.3.2 ) are listed for hearing as separately recorded.

REASONS

The Relevant Law

[1]The hearing was conducted as a remote hearing (by CVP) to which the parties consented. It was held in this manner in the light of the claimant’s asthma, and as it was, in all the circumstances, in the interests of justice/ in accordance with the overriding objective to do so.

Introduction

[2]By a claim form presented on 14 November 2020, the claimant, who was an unsuccessful job applicant for financial positions in the respondent, brought claims of sex discrimination and detriment for making protected public interest disclosures. The claimant stated in the attachment to her claim form that it was a claim for “discrimination, victimisation and whistleblowing” in relation to the respondent’s refusal to allow the claimant a right to a grievance appeal (email from Ms C Shand of the respondent to the claimant dated 18 September 2020) due to:-(a) the claimant raising a grievance in respect of the involvement by a manager of the respondent in alleged accounting and taxation irregularities and /or

(b) that the claimant had raised past legal proceedings under the Sex Discrimination Act 1975/ the Equality Act 2010 (“the 2010 Act”). The claimant’s “grievance” related to alleged discriminatory/ detrimental conduct by the respondent in respect of the two interviews referred to in paragraph 3 below.

[3]The claimant also referred in the attachment to her claim form to previous alleged discrimination and/or detrimental treatment in respect of two unsuccessful applications for posts with the respondent namely: -(a) the post of DPSS Account Officer – interview on 31 October 2019 and rejection on 4 November 2019 and

(b) the post of Direct Payment Finance Officer – interview on 5 December 2019 and rejection on 10 December 2019).

[4]The claimant further stated in the attachment to her claim form that she appreciated that there were time issues in respect of matters arising prior to 18 September 2020 and that she was therefore relying upon them for reference only. The claimant however, also referred in her claim form to the allegation relating to the refusal of her grievance appeal as part of a continuing course of conduct.

[5]The claimant’s ACAS Early Conciliation Certificate records that the claimant’s EC notification was received by ACAS on 18 September 2020 and that the EC Certificate was issued on 18 October 2020.

[6]The respondent disputed the allegations in its response form including on the grounds that the Tribunal did not have jurisdiction to entertain the claimant’s claims in respect of the interviews in October and December 2019 because they were presented outside the statutory time limits and /or that the claimant did not have the necessary status (as a job applicant) to pursue a complaint of detriment for making protected public interest disclosures. Further/ in the alternative, the respondent contended that the claims should be struck out on the grounds that they were scandalous or vexatious or had no reasonable prospects of success. The case management hearing/order

Conclusions

[7]The matter was the subject of a case management hearing on 14 July 2021 and subsequent case management order dated 16 July 2021 (“the CMO”) during/ in which the Tribunal sought to clarify the nature of the claimant’s claims and gave further directions for the future conduct of the case. The CMO is at pages 74- 86 of the bundle. In brief summary the Tribunal :-(a) sought to clarify the issues as recorded in the CMO including in the provisional List of Issues (paragraphs 29 onwards of the CMO)

(b) decided to list the matter for this Preliminary Hearing to determine the Preliminary Issues and other matters identified at paragraph 1 of the CMO (including in particular the issues of status and time limits as stated at paragraphs 1.1 – 1.4 of the CMO) and

(c) gave directions for the further clarification of the claims / preparation for the Preliminary Hearing (paragraphs 9-12 of the CMO).

[8]The claimant subsequently provided further clarification of her claims in her letters dated 3, 13 and 17 August 2021 (pages 87 - 95 of the bundle) including that she did not wish to pursue any application to amend her claim form to bring any complaint of disability discrimination and/or harassment related to sex.

[9]It was however apparent from the above correspondence and from the helpful written submissions which were submitted by the parties for the purposes of this Preliminary Hearing, that there were still a number of issues which required further clarification as recorded below. Witnesses

[10]The Tribunal received a witness statement and heard oral evidence from the claimant. The Tribunal did not receive any evidence from the respondent. Documents

[11]The Tribunal was provided with an agreed bundle of documents (which was divided into three sections (Section A – C) (“the bundle”). The Tribunal was also provided, as requested, with a copy of the respondent’s complaints policy.

The issues

[12]The Tribunal clarified with the parties the issues for determination at this Preliminary Hearing (by reference in particular to the pleadings, the CMO and the respective written submissions of the parties) as recorded below. Paragraph 1.1 of the CMO – namely, does the claimant have the necessary status as a job applicant to bring a complaint that she has been subjected to detriments on the grounds that she has made protected public interest disclosures.

[13]The claimant accepted that, as a job applicant (and not a worker), she was not, without the assistance of wider statutory interpretation (as referred to further below), entitled to pursue a claim for protected public interest disclosure detriment pursuant to sections 47 B(1)/ 48 of the Employment Rights Act 1996 (“the Act”).

[14]The claimant further confirmed that she accepted that for the purposes of section 49B of the Act (which section affords protection to applicants for employment in the health service from detriment for making protected public interest disclosures), that the respondent is not included in the list of NHS Employers/ Public Bodies for the purposes of section 49 B (6)/ (7) (a) – (p) of the Act.

[15]The claimant’s position in summary, is however that: -(1) The provisions of section 47 B (1) / 48 of the Act, should be extended / interpreted to include job applicants by reason of: - (a) the application of the EU Directive 2019/1937 and/or (b) Articles 10 and 14 of the European Convention of Human Rights and /or the Human Rights Act 1998 and/or the Enterprise and Regulatory Reform Act 2013/ the Judgment of the Supreme Court in Gilham v Ministry of Justice.

(2) The respondent was (notwithstanding that it was not designated as such by section 49 B (7) (a) –(p) of the Act), in reality an NHS employer as it advertised for NHS staff. Further, the provisions of section 49 B (7) should in any event be extended / interpreted to include the respondent in the light of the wider provisions referred to in paragraph (1) above.

[16]The respondent’s position continues to be however that: -(1) The provisions of section 47 B (1) / 48 and /or 49 B of the Act are clear and unequivocal. They do not provide any protection to the claimant who was a job applicant (not a worker) for employment (in financial roles) with the respondent. Moreover, the respondent was/is not a designated NHS Employer/ NHS Public body for the purposes of section 49 B of the Act and the claimant cannot therefore rely upon such provisions.

(2) Further, the relevant statutory provisions are not capable of being extended/ interpretated pursuant to any EU Directive (insofar as it is in any event of any relevance/ ongoing application) and/or Human Rights provisions and/or or any other authorities such as to bring the claimant within such protections.

[17]The Tribunal clarified with the parties their respective positions with regard to any protected public interest disclosures (in the event that the Tribunal held that the claimant had the necessary status to pursue such a claim).

[18]The Tribunal clarified with the claimant her position in the light, in particular, of paragraphs 10 – 12 of her written submissions. After further discussion during the Preliminary hearing (including an explanation from the Tribunal that any disclosure would for the purposes of causation have to predate any alleged detrimental (bad) treatment, the claimant clarified her position with regard to her protected public interest disclosure claim as follows: -(1) The claimant confirmed (having acknowledged that any remaining alleged disclosures identified at paragraph 10 of her written closing submissions were made after the alleged detrimental treatment relied upon ( i.e. the refusal of Ms Shand on 18 September 2020 to permit the claimant to pursue an appeal against the rejection of her complaint regarding the conduct of the interviews in November and December 2019 pursuant to the respondent’s complaint’s policy) that the only alleged disclosure upon which she relied was contained in the letter to Mr Justin Tomlinson MP dated 17 March 2020 (section C – pages 19 and 22-23 of the bundle). The claimant also contends however, that this disclosure was copied to the respondent- the Chief Executive of the respondent- Mr J Metcalfe and/or Ms Shand on 17 March 2020 (section C – page 19 of the bundle). The claimant therefore relies on sections 43 C and /or 43 F of the Act in respect of such alleged disclosure.

(2) Whilst the main focus of the claimant’s letter to the MP dated 17 March 2020 (C19 of the bundle) related to the alleged conduct of the respondent during the interviews (including that the claimant had allegedly been described during the interview(s) as “mentally insane”), the letter also referred to alleged financial irregularities. The claimant’s alleged disclosure relates to the alleged activities of a manger in the respondent, Mr M Porter, (who was also a member of the interview panels) regarding the operation of a charitable trust and the alleged failure to submit to companies house truthful accounts of trading revenue received.

(3) The claimant confirmed that it is her case that the references to such matters in the letter dated 17 March 2020 constituted a qualifying disclosure for the purposes of Section 43 (B) (1) (a) and/or (b) of the Act. In summary, the claimant says that she made a disclosure which in her reasonable belief was in the public interest and tended to show that a manager of the respondent ( Mr Porter) had committed a criminal offence (fraud) and /or had breached his legal obligations relating to the financial operation of a charitable trust (the Shanklin Chine Trust) in respect of alleged financial irregularities / the failure to submit truthful accounts of trading revenues to companies House.

(4) The claimant identified three detriments upon which she relied at paragraph 11 of her written submissions (the rejection on 4 November 2019 and 10 December 2019 of applications for employment and the refusal on 18 September 2020 of a right of appeal against the rejection of her subsequent complaint regarding the conduct of the interviews for such positions).

(5) Following the clarification of the claimant’s alleged protected public interest disclosure (and the explanation by the Tribunal that the disclosure had to predate the alleged detrimental treatment) the claimant confirmed that the only alleged detriment upon which she relied was accordingly, the refusal by Ms Shand on 18 September 2020 to allow the claimant a right of appeal against the rejection of her complaint pursuant to the respondent’s complaints procedure.

[19]The respondent accepted for the purposes of this Preliminary Hearing only that (if the Tribunal had jurisdiction to consider the claimant’s claims) it was possible that the above could constitute protected interest disclosures / detriments but did not make any concessions pending further consideration of the position. Paragraph 1.2 of the CMO-namely in respect of the claimant’s complaint of sex discrimination (victimisation pursuant to section 27 of the Equality Act 2010 (“the 2010 Act”) relating to the respondent’s refusal to allow the claimant to pursue an appeal against the outcome of a complaint under the respondent’s complaints procedure, whether the claimant was an applicant for the purposes of section 39 of the 2010 Act.

[20]This issue is in dispute between the parties. The claimant contended that she was “an applicant” in respect of this allegation for the purposes of section 39 of the 2010 Act as the outcome of her complaint pursuant to the respondent’s complaints procedure was part of the arrangements which the respondent made for deciding to whom to offer employment. This is disputed by the respondent who says that it does not form part of such arrangements and the claimant does not therefore fall within the provisions of section 39 of the 2010 Act.

[21]The Tribunal clarified with the parties their respective positions with regard to any protected acts in case the Tribunal decided that the claimant was “an applicant” for the purposes of section 39 of the 2010 Act.

[22]The claimant confirmed that for the purposes of her complaint of victimisation the Issues identified at paragraphs 7 of the CMO (page 85-89 of the bundle) :-(a) the protected acts are the alleged references at the interview on 31 October 2019 to previous Tribunal claims for sex discrimination (alleged proceedings against the Post Office Limited in or around 2010/ Solent Composite Systems in or around 2019 identified in paragraph 15 of the claimant’s written submissions) / the claimant being perceived as being likely to bring a Tribunal claim (paragraph 7.6 of the CMO and paragraph 15 of the claimant’s written submissions)

(b) she further contends that the alleged protected acts are referred to in the documents ( sections A and C of the bundle) the page numbers for which are identified at paragraph 14 of the claimant’s written submissions)

(c) the claimant however confirmed during this Preliminary hearing that it is not her case that she made any reference to any proceedings against the Post Office/ Solent during the interviews and/or that there was anything further said by her regarding such matters which is not recorded in her subsequent reports of the interviews

(d) the claimant further confirmed that it is her case that it was Ms Martin who made a comment about the Post Office and

(e) the alleged detriments are as identified at paragraphs

7.3.1 and

7.3.2 of the CMO (page 86 of the bundle) as confirmed at paragraph 16 of the claimant’s written submissions and referred to below

(f) that the alleged discriminators in respect of the rejection of the claimant for the post of DPSS Account officer (4 November 2019, paragraph 7.31 of the CMO and pages 3-4 of Section C of the bundle) are Esther Martin, Matthew Porter and Daniel Philbrick

(g) the alleged discriminators in respect of the rejection of the claimant for the post of Direct Payment Officer) (10 December 2019, paragraph 7.3.2 of the CMO and page 9 of Section C of the bundle) are Esther Martin, Matthew Porter and Mr Higginson and

(h) the alleged discriminator in respect of the refusal to allow the claimant to pursue a grievance appeal under the respondent’s complaints procedure (18 September 2020, paragraph 7.3.2 of the CMO and pages 32- 34 of Section C of the bundle) is Ms C Shand.

[23]The respondent did not make any formal concessions as to whether the claimant had done any protected acts. The respondent also contended that it had had difficulty discerning any references to any protected acts in the claimant’s reports of the interviews on 31 October 2019 and 5 December 2019. The respondent however accepted, for the purposes of this Preliminary hearing only, that :-(a) the document at C10 of the bundle (the crime report to the police dated 7 January 2020)

(b) the document at C19 of the bundle (the letter to the MP dated 17 March 2020 )

(c) the documents at C26 – 28 of the bundle ( the emails from the claimant to Ms Shand dated 13 and 14 July 2020 enclosing the claimant’s initial and more detailed reports of the interviews on 31 October 2019 and 5 December 2019) ( the reports are at pages 2-22 of Section B of the bundle) may possibly constitute protected acts for the purposes of the 2010 Act and

(d) that the claimant was also, in any event, contending for the purposes of her complaint of victimisation that she was subjected to the alleged detrimental treatment because the respondent believed that the claimant might do a protected act. Whether, in the event that the claimant has the necessary status to pursue her claims (or any of them) any such permitted claims were, in any event, presented within the relevant statutory time limit and if not whether time should be extended on the basis set out in paragraph 1.3 of the CMO.

[24]In the light of the clarification of the issues above, the respondent accepted that:-(a) if the claimant is able to satisfy the Tribunal that it has jurisdiction to entertain her complaint of protected public interest detriment that claim ( as now clarified) would be in time and

(b) if the claimant is able to satisfy the Tribunal that it has jurisdiction to entertain the claimant’s complaint of victimisation in respect of Ms C Shand’s refusal on 18 September 2020 to allow the claimant to pursue an appeal against the outcome of her grievance under the respondent’s complaints policy, this would also be in time. The respondent continued to maintain however that the earlier allegations relating to the interviews/ outcome of the interviews in OctoberDecember 2019 (Issues 5.3.1, 5.3.2 and 7.3.1 are out of time ( including that that they do not form part of a course of conduct / that it would not be just and equitable to extend time to allow them to proceed).

[25]There was a lack of certainty on the part of the claimant as to whether she wished to proceed with the allegations of direct sex discrimination relating to the alleged comments of the respondent at the interviews on 31 October 2019 and 5 December 2019 (paragraphs5.3.1 and

5.3.2 of the CMO) as discrete allegations of alleged direct sex discrimination (including as part of a continuing course of conduct) or as matters of background only. In the light of the fact that the claimant was unable to give an unequivocal answer on this point the Tribunal indicated that it would proceed on the basis that claimant was still pursuing such claims of direct sex discrimination as discrete allegations of sex discrimination and further as part of continuing course of conduct culminating in the refusal of Ms Shand on 18 September 2020 to allow the claimant to pursue an appeal against the outcome of her grievance under the respondent’s complaints procedure. Whether the claimant should be permitted to amend her claim form to add a complaint of disability discrimination (perceived disability of mental insanity) in respect of the alleged comments at the interview on 31 October 2019 identified in paragraph 1.4 of the Order and/or the claimant’s subsequent rejection for the post.

[26]The claimant confirmed at the hearing that she did not wish to pursue any application to amend her claim form to add any complaint of disability discrimination.

[27]The claimant further confirmed, for the avoidance of doubt, that she did not wish to pursue any complaint of harassment in respect of the allegations of sex discrimination.

[28]The issues with regard to Issue 1.5 (the applications for strike out / deposit orders) are discussed further below.

THE FACTS

[29]The Tribunal has found the following facts, on the balance of probabilities, for the purposes of the determination of the Preliminary Issues identified above. The position of DPSS Account Officer

[30]On 31 October 2019, the claimant attended an interview with the respondent for the position of DPSS Account Officer. The interview was conducted by Ms Martin, Mr Porter and Mr Philbrick.

[31]On 4 November 2019 the respondent emailed the claimant advising her that she had been unsuccessful at interview. The respondent complemented the claimant on her academic achievements and gave advise for future interviews. This email is at pages 3-4 of Section C of the bundle. The claimant replied the same day thanking the respondent for the email. The claimant stated that it had been nice to meet everyone and informed the respondent of her intention to look for employment with other companies (page 3 of Section C of the bundle). The position of Direct Payment Finance Officer

[32]On 5 December 2019 the claimant attended an interview with the respondent for the post of Direct Payment Finance Officer. The interview was conducted by Ms Martin, Mr Porter and Mr Higginson.

[33]On 7 December 2019 the claimant emailed the respondent with information regarding previous employment and associated matters (page 8 of Section C of the bundle).

[34]On 10 December 2019 the respondent advised the claimant that she had been unsuccessful at interview. The respondent further stated that although the claimant had not been successful, she had done well at her interview and thanked her for attending (page 9 of Section C of the bundle). The claimant replied thanking the respondent for the email. The claimant advised the respondent that she had received news of her exams that day and that she had now completed her postgraduate Diploma in Environment Management (the email dated 10 December 2019 at page 9 of Section C of the bundle). The crime report

[35]On 7 January 2020, the claimant filed an online crime report with the Hampshire Police concerning an alleged verbal assault during an interview (this email is at page10 Section C of the bundle) which she stated she had not reported at the time. The claimant also stated that she had not raised a complaint with the respondent but intended to email their Safeguarding Team relating to the alleged statements made by the respondent during the interview that the claimant was mentally insane. The claimant also made reference to the Shanklin Chine which she stated was dormant but had been taking revenues for many years.

[36]The claimant also filed a report on the respondent’s confidential safeguarding helpline (page 11 Section C of the bundle) in which she alleged that it had been repeatedly stated during the interviews on 31 October 2019 and 5 December 2019, that the claimant was apparently “mentally insane” and requested confirmation of whether anyone had raised any safeguarding reports concerning such false statements.

[37]The above prompted further exchanges of correspondence (including a freedom of information request) between the parties which are not relevant to the issues to be determined at this preliminary hearing. Email dated 12 February 2020 and associated correspondence

[38]On 12 February 2020 the claimant emailed the Chief Executive of the respondent, Mr J Metcalfe, in which she stated that she was attaching a copy of the report which she had sent to the Hampshire police together with other documents relating to the Shanklin Chine Trust. This email is at page 12 Section C of the bundle. The claimant advised the Chief Executive that she would allow 28 days for the review of her Police complaint and any internal steps by the respondent after which she would progress her complaint to the Local Government and Social Care Ombudsman.

[39]The respondent’s Chief Executive, Mr Metcalfe, acknowledged receipt of the claimant’s email which he stated he understood to be a complaint about the way in which the interviews were conducted. The Chief Executive advised the claimant that he would ask the respondent’s Director of Corporate Resources (Ms Shand) to have her complaint investigated and a reply sent to her (page 13 of Section C of the bundle). The Chief Executive further stated that the respondent had no connection with the Shanklin Chine and was therefore unable to comment any further on the allegations which she had made regarding its operation.

[40]Ms Shand wrote to the claimant on 19 February 2020 advising the claimant that as the matter related to employees of the respondent, and in accordance with section 8 of the respondent’s complaints policy, it would investigate the matter in accordance with its employee code of conduct utilising the respondent’s disciplinary policy and employee conduct procedure. Ms Shand subsequently wrote to the claimant on 2 April 2020 apologising for the delay in concluding the investigation which she attributed to the impact of the covid 19 pandemic on the respondent’s resources. The email dated 17 March 2020

[41]The claimant emailed Mr Metcalfe and Ms Shand on 17 March 2020 advising them that she had contacted the CQC and Justin Tomlinson MP and attached copies of her letters. The claimant also stated in her letter that she had attempted to contact the Local Government and Social Care Ombudsman but had been advised that she required a final response from the respondent before being able to progress the complaint (page 17 of Section C of the bundle). The accompanying letters dated 17 March 2020 are at pages 18-19 of Section C of the bundle).

[42]The letter to the MP (page 19 of Section C of the bundle) is the document which is relied upon by the claimant as her protected public interest disclosure (paragraph 18 above). In brief, the letter complains about the following matters :-(a) the comments allegedly made by the respondent at the interview/ interviews that the claimant was “apparently ‘mentally insane’” together with the claimant’s consequential concerns regarding the stigmatisation and treatment of disabled people by the respondent during the recruitment process and

(b) the alleged financial irregularities in the operation of the Shanklin Chine Trust and the alleged involvement of one of the respondent’s managers, Mr Porter. The letter makes no reference however, to the alleged discriminatory comments upon which the claimant relies for the purposes of her complaint of direct sex discrimination (paragraphs

5.3.1 and

5.3.2 of the CMO). The claimant stated that she had sent details of her complaint to the Police and to the respondent.

[43]Ms Shand advised the claimant in July 2020 that it would then be possible to recommence the investigation. The claimant’s reports of the interviews of 31 October 2020 and 5 November 2020

[44]On 13 July 2020 the claimant emailed Ms Shand and Mr Metcalfe attaching what she described as the full reports of the interviews on 31 October 2020 and 5 December 2020 (created on 12 July 2020) This email is at page 26 Section C of the bundle.

[45]The claimant’s report of the interview on 31 October 2019 is at page 2 Section B of the bundle. The claimant has recorded in the report multiple alleged inappropriate / discriminatory comments by members of the interview panel including that it was stated at the interview that she was mentally insane and that she had ugly lumps on her face. The claimant also recorded that Miss Martin had referred during the interview to an Employment Tribunal case from 2009 against the Post Office regarding allegations of a physical assault on the claimant. The claimant also submitted at that time a document recording alleged financial irregularities relating to the operation of the Shanklin Chine Trust of which it was alleged that Mr Porter was a trustee. This document is at page 4 Section B of the bundle.

[46]Ms Shand acknowledged receipt of the reports submitted by the claimant and advised her that they would be passed to the investigating officer. The claimant was advised that as the complaint related to employees of the respondent it would not be possible to inform the claimant of the detailed progress of the investigation or the outcome of any disciplinary action. The further/ amended reports submitted on 14 July 2020.

[47]On 14 July 2020 the claimant emailed to Ms Shand her amended reports of the interviews on 31 October 2019 and 5 December 2019. (Page 28 of Section C of the bundle) The claimant stated that she believed that the amended reports were a full account of the interviews.

[48]The claimant’s further accounts of the interview on 31 October 2019 are at pages 5- 14 of Section B of the bundle. The notes record multiple allegations of alleged inappropriate / discriminatory comments /conduct by the members of the interview panel. The recorded comments/ conduct include: -(a) alleged observations and comments regarding the claimant’s bottom and

(b) an alleged reference to “the Post Office” by Ms. Martin which the claimant stated in the document she understood to be a reference by Ms Martin to a previous Tribunal claim involving an alleged physical assault with “sexual tones”.

[49]The claimant’s detailed accounts of the Interview on 5 December 2019 are at pages 15 – 22 of Section B of the bundle. The notes again record details of alleged inappropriate/ discriminatory comments/ conduct by members of the interview panel. The record includes an allegation that during the course of the interview Mr Higginson banged his hand on the table and said to the claimant that she should “get some contraception” which the claimant speculated in the notes might have been said by him because she had a blemish on her nose.

[50]An investigation into the claimant’s complaint was undertaken by a Strategic Manager in the Business Centre, to which the claimant was invited to contribute. The respondent’s outcome email dated 18 September 2020

[51]Ms Shand emailed the claimant on 18 September 2020 advising the claimant of the outcome of the investigation into her complaints. This email is at pages 32- 34 of Section C of the bundle. In summary, the Ms Shand advised the claimant :-(a) that the respondent had concluded its investigation, in accordance with stage one of the respondents’ complaints procedure, into the complaint which the claimant had raised with the chief executive concerning the conduct and behaviour of four of its employees

(b) summarised the process undertaken including that additional information had been sought from the police regarding the crime reports submitted by the claimant

(c) that as advised previously, she was unable to share with her the detailed investigation report as it related to the conduct of employees and was therefore investigated pursuant to the respondent’s internal disciplinary procedure

(d) assured the claimant that the allegations had been treated very seriously and a thorough investigation undertaken ( e) the investigation had however concluded that there was no evidence of any wrongdoing by the members of staff and that her complaint was therefore not upheld (f) if she was dissatisfied with the decision the claimant would normally have the right to refer the matter to a stage 2 review which would be carried out by another senior officer. However, having given the situation very careful consideration Miss Shand had concluded that this would not be an appropriate course of action in the circumstances of the case as a thorough investigation had been undertaken and the process had had a significant impact on the staff involved (g) in the circumstances she considered it necessary to take measures to protect the respondent’s employees from any further distress being caused by any further pursuit of the allegations (h) further, as she considered that there was nothing further to be attained by a stage 2 review she was “disapplying that option” in the exceptional circumstances of the case. Accordingly, the claimant had no further option to pursue the complaint pursuant to the respondent’s complaints procedure (i) that the respondent did and would continue to treat any complaint against an employee very seriously however unjustified complaints about the same matter would not be investigated further unless they were properly evidenced and substantiated by new information( j) she hoped that the claimant would be assured that the allegations had been taken seriously but also appreciate the importance of the need to protect the well-being of staff. Ms Shand concluded her letter by confirming the claimant’s right to complain directly to the Local Government and Social Care Ombudsman (“the Ombudsman”) and provided the contact details. The claimant’s complaint to the Local Government and Social Care Ombudsman

[52]The claimant submitted a complaint to the Ombudsman on 19 February 2021. The claimant’s completed claim form is at pages 38 b – 38 c of Section C of the bundle. In brief summary, the claimant complained about the respondent’s refusal to allow her a right of appeal against its complaint response dated 18 September 2020. The claimant stated that she felt that the refusal of the appeal was both discriminatory and due to her raising whistle blowing concerns relating to the Shanklin Chine Trust. The claimant further stated that she had progressed the matter to the Employment Tribunals, the Solicitors Regulation Authority and to the independent office of Police Complaints.

[53]The Ombudsman declined to investigate the claimant’s complaint on the grounds that it related to a grievance by the claimant relating to two job interviews with the respondent and that it was not allowed as a matter of law to investigate employment related complaints. The Ombudsman’s draft decision dated 22 March 2021 is at pages 41-42 of Section C of the bundle.

[54]The claimant subsequently raised concerns relating to the matters raised in the Tribunal proceedings with other public bodies including a complaint to the Solicitors Regulation Authority concerning the alleged conduct of the respondent’s solicitor concerning the contents of the respondent’s response in the Tribunal proceedings, which complaint was rejected (the email dated 22 April 2021 at pages 43 - 44 of Section C the bundle). The respondent’s complaints procedure

[55]The Tribunal has had regard to the provisions of the respondent’s Complaints Policy including in particular :- paragraphs 2, (the definition of a complaint) 3 (aims and objectives) 4 (who can complain) – including that anyone can make a complaint if they believe that the respondent had done something wrong or done/ failed to do anything that they should or should not have done 5 (the respondent’s undertaking to complainant’s - including that they would not suffer any penalty or discrimination as a result of making a complaint, 7 (unreasonable complainant behaviours) – including that that respondent has a separate policy for dealing with unacceptable behaviours, 8 ( the procedure for dealing with complaint against members of staff) – including that complaints against members of staff are normally dealt with under the respondent’s code of conduct for staff or through the internal disciplinary policy and procedure and further that it would not normally be possible to advise a complainant of the specific outcome of any disciplinary action taken, 9 & 10 (the procedures at stage 1 and stage 2 )- including that at stage 2 a Head of Service / Strategic Manager would consider the complaint and response at stage 1 and respond to the claimant – there is no stated right to refuse a request for a stage 2 review save that at paragraph 4 the policy states that the respondent would not always use the stage 2 procedure as some types of complaints had their own procedures. The alternative appeal procedures listed in the Policy are not however applicable in this case.

[56]The claimant contended that she had brought previous Tribunal proceedings (including against the Post Office) and accepted that she had knowledge and experience of Tribunal procedures including relevant time limits for bringing a claim. The Tribunal was not provided with any documents relating to any previous proceedings but accepted for the purposes of this hearing, the claimant’s evidence regarding such matters. The claimant was unable to provide any explanation for any delay in bringing these proceedings which she described as “stupidity on my part”.

[57]The claimant informed that Tribunal that she was a part qualified accountant (AAT). The Tribunal accepted the claimant’s evidence for the purposes of this hearing.

[58]The claimant confirmed for the purposes of any deposit order that: -(a) she was not currently working and was in receipt of state benefits and

(b) that she had savings of approximately £11,500. The Tribunal accepted the claimant’s evidence regarding such matters.

[59]The Tribunal has given careful consideration to the written and oral submissions of the parties which are briefly summarised in the relevant sections below.

THE LAW

[60]The Tribunal has had regard in particular to the legal provisions and authorities which are referred to in the relevant sections below. THE CONCLUSIONS OF THE TRIBUNAL IN RESPECT OF ISSUE 1.1

[61]Issue 1.1 (a) – whether the claimant was a worker/ had the necessary status to pursue her protected public interest detriment claims pursuant to sections 47 B(1) and Section 48 (1) of the Act.

[62]The Tribunal has had regard in particular to the following statutory provisions and legal authorities: - Sections 43 A, 43B, 43K, 47B, 48 and 230 (3) of the Act. Elstone and anor

2010 ICR 879

EAT

[63]It is common ground between the parties that the claimant:-(a) was a job applicant

(b) was therefore not a worker for the purposes of Section 230 (3) of the Act as extended by section 43 K of the Act and that

(c) is therefore not entitled to pursue her protected public interest detriment claims pursuant to section 47 B / 48 (1) of the Act as they currently stand. The claimant however contends that she is entitled to rely on section 49 B of the Act (protection for applicants for employment in the health service)– considered separately below.

[64]Section 43 A of the Act defines a protected disclosure as a qualifying disclosure which is made by a worker in accordance with any of sections 43 C – H of the Act. The claimant, as a job applicant, was not however, a worker pursuant to section 230 (3) as extended by section 43K of the Act. Section 230 (1)/ (3) of the Act defines an employee/ worker as an individual who has entered into or works or had worked under a contract of employment or other contract as defined in that section. Section 43K similarly applies to individuals who work or have worked for a person in the circumstances defined in that section. Further the Tribunal is reinforced in its view by the EAT Judgment in Elstone in which it was held that, having regard to the wording of sections 43A and 43B of the Act, whilst the protected disclosure may have been made to a previous employer, the detriment from which the complainant was protected was one which related to /affected his current employment (emphasis added). The Tribunal is accordingly satisfied that the Tribunal does not have jurisdiction to entertain the claimant’s detriment claims pursuant to sections 47 B/ section 48 (1) of the Act. Issue 1.1 a – whether the claimant can rely on section 49 B of the Act.

[65]The Tribunal has therefore gone on to consider whether, as contended by the claimant, she can however, pursue her claims of protected public interest detriment pursuant to section 49 B of the Act on the grounds that the respondent was at the time of her application an NHS employer for such purposes.

[66]The claimant accepts that the respondent, as a local authority, is not included in the list of NHS Employers/ as a NHS body for the purposes of section 49 B (6)/ (7) of the Act. The claimant contends however that the Government has expressly defined local authorities as an NHS employer through their inclusion on the NHS.org ‘NHS employer’s list (page 59 of Section B of the bundle) and/or that this was an omission and that the intention of the Government was to include all such employers.

[67]The respondent contends that the claimant cannot rely upon section 49 B of the Act as by virtue of section 49B (6) of the Act an NHS employer means an NHS public body as defined in 49 B (7)(a) – (p) of the Act which does not include a local authority such as the respondent.

[68]The Tribunal is satisfied that :-(a) the respondent does not fall within the definition of NHS Employer/ NHS Body as defined in sections 49 B(6)/ (7)(a)- (p) of the Act

(b) that any inclusion of the respondent in the document referred to at paragraph 66 above, does not in any way affect the statutory definition of an NHS Employer/ Body as listed at paragraphs 49 B (6)/ (7) (a) – (p) of the Act

(c) there is no evidence before the Tribunal to suggest that the non – inclusion of local authorities in the statutory definition was an omission or that the Government had intended to include them as alleged by the claimant and

(d) the claimant cannot therefore rely on section 49 B to advance her claims of protected public interest detriment. Issue 1.1 (b) whether the claimant is in any event able to establish worker / the necessary status by virtue of the application (in respect of claims pursuant to section 47B and /or section 49 B) of the EU Directive 2019/1937.

[69]The Tribunal has had regard to the provisions of EU Directive 2019/1937 (dated 23 October 2019) (“the Directive”) (and in particular paragraphs 38 and 39 of the Preamble and Article 4 of the Directive.

[70]In summary, the claimant seeks to rely on the provisions of the Directive and in particular paragraph 39 of the Preamble which recognises that persons who are not workers may find themselves in a position of economic vulnerability in the context of their work-related activities and that protection should therefore be granted to persons such as job applicants.

[71]In summary, the respondent contends as follows:-(a) the source of the whistleblowing legislation is the Public Interest Disclosure Act 1998 rather than European Law

(b) the claimant has not set out any basis upon which she says the Directive can have direct effect or assist the interpretation of the domestic law ( before or after the UK’s withdrawal from the EU on 31 December 2020) as there is no such basis in law

(c) the claimant does not , in any event, fall within the scope of Article 4 of the Directive as paragraph 3 of Article 4 only provides protection to job applicants where information “on breaches” has been acquired during the recruitment process.

[72]Having given the matter careful consideration, the Tribunal is not satisfied, regardless of any potential effect of the Directive on domestic legislation, that the claimant, in any event falls within the scope of the Directive.

[73]When reaching this conclusion the Tribunal has taken into account in particular that :-(a) there is no suggestion in this case that the information on the “ alleged breaches” , which relate to Mr Porter’s alleged activities in respect of the Shanklin Chine Trust ( as referred to in the claimant’s alleged protected public interest disclosure contained in her letter to her MP dated 17 March 2020 referred to above ) was acquired by the claimant during the recruitment process. On the contrary, the “information” regarding the “alleged breaches” was already in her possession prior to / did not arise from the relevant recruitment process and

(b) the protection provided by paragraph 3 of Article 4 of the Directive is limited to cases “where information on breaches” has been acquired during the recruitment process.

[74]Further, the Tribunal is not satisfied, on the facts of this case, that even if the claimant was able to bring herself within the scope of the Directive, she has established any grounds/ the basis upon which the Tribunal is required/ should apply the Directive. The “whistleblowing “provisions in Part IVA of the Act were inserted by the Public Interest Disclosure Act 1998. These provisions are not derived from European law and accordingly (and regardless of any effect of the withdrawal Act) the definition of worker does/ did not have to be read so as to conform to the requirements of EU law. Issue 1 1.1 (b) whether the claimant is, in any event, able to establish worker/ the necessary status by virtue of the application (for the purposes of section 47B / 48 (1) and/or 49 B of the Act) of the European Convention on Human Rights and/or the Human Rights Act 1998 (“the 1998 Act”) and /or the Enterprise and Regulatory Reform Act 2013.

[75]The Tribunal has had regard to the legal provisions referred to above (including in particular Articles 10 (freedom of expression) and 14 (prohibition of discrimination) of the Convention Rights contained in the Schedule 1 to the 1998 Act together with the Judgment of the Supreme Court in Gilham v Ministry of Justice

[2019] UKSC 44

[76]In summary , the claimant contends that :-(a) the Tribunal is required, pursuant to section 3 of the 1998 Act, to read and give effect to primary and subordinate legislation in a way which is compatible with the Convention rights and

(b) the failure ( in respect of both section 47 B and/or section 49 B of the Act ) to extend the “whistleblowing” detriment protections to job applicants such as the claimant is a violation of the claimant’s rights under Articles 10 and 14 of the claimant’s Convention rights.

[77]The claimant further contends that the Tribunal is required to consider the four questions identified in Gilham as follows :-(i) do the facts fall within the ambit of one of the Convention rights – the claimant contends that they fall within the ambit of the right to freedom of expression protected by Article 10

(ii) Has the claimant been treated less favourably than others in an analogous situation - the claimant contends that job applicants have been denied protection in comparison to others who make responsible public interest disclosures within the requirements of the Act

(iii) is the reason for that less favourable treatment one of the listed grounds ( in Article 14) or other status – the claimant contends that a job applicant is an occupational classification which is clearly capable of being a status within the meaning of Article 14 and

(iv) – is that difference without reasonable justification – the claimant contends that there is no justifiable reason for falling to afford protection to job applicants (including as for the purposes of section 49 B local authorities also recruit/ employ staff who care for vulnerable people) and such exclusion must therefore be a breach of Articles 10 and 14 of her Convention rights.

[78]In summary, the respondent’s primary position is that there is no scope for extending whistleblowing protection to applicants, as opposed to office holders, by using human rights law. Further, Parliament has already considered the position of applicants and has chosen not to extend the NHS employer protection to other applicants for employment. In respect of Gilham the respondent contends in particular as follows :-(a) “job applicants” do not have “other status” for the purposes of Article 14, if it was extended in that way it would apply to anyone who applies for a job whereas officer holders (as in Gilham) do have such status and

(b) Parliament has already considered “job applicants” as a category for whistleblowing protection but has chosen to limit the protection to those working in the NHS by way of section 49 B of the Act. There is reasonable justification for the decision to limit the extension of the protection to the NHS field as the NHS is a large employer with responsibility for patient safety and staff regularly move between NHS trusts

(c) further a distinction should be drawn between this case and the situation in Gilham as for the purposes of remedy judicial officer holders such as Gilham readily fit within the worker relationship whereas job applicants do not have any such relationship and

(d) as far as the claimant’s contentions regarding section 49 (B) of the Act are concerned there is no justification for extending the section as contended by the claimant – the section carefully identifies which bodies are deemed to be NHS employers which definition is too tightly defined for any extension on Human rights grounds and

(e) the respondent also relies, for the purposes of interpretation, on paragraph 16 of the EAT in Elstone, which stresses the importance of the relationship between the worker and the “employer” which is absent in this case.

[79]Having given careful consideration to all of the above, including that the Tribunal is required pursuant to section 3 of the 1998 Act to read and give effect to legislation in a way which is compatible with Convention Rights, the Tribunal has reached the conclusions set out below.

[80]The Tribunal has for such purposes given careful consideration to the four questions identified at paragraph 28 of Gilham as follows:-(i) – Do the facts fall within the ambit of one of the Convention rights – having for such purposes taken the claimant’s case at its highest, the Tribunal is satisfied that the facts may potentially fall within Articles 10 (freedom of expression) and Article 14 ( prohibition of discrimination – in respect of “other status”) namely, that the claimant was allegedly subjected to a detriment (the refusal of a right of appeal under the respondent’s Complaints Policy) because she made an alleged protected public interest disclosure to her MP/ the respondent on 17 March 2020 concerning the alleged conduct of Mr Porter in respect of the financial operation of the Shanklin Chine Trust as referred to above.

(ii) Has the claimant been treated less favourably than others in an analogous situation – the claimant compares herself with others who are afforded protection under the Act namely employees / workers generally and also job applicants applying to join an NHS employer/ NHS body (as defined in section 49 B of the Act). Having given the matter careful consideration the Tribunal is not satisfied on the facts of this case that the claimant has established that she was in an analogous situation to the above for the following reasons:- (a) the Tribunal is not satisfied that a job applicant is in an analogous situation to an employee or worker of an organisation who has, by way of contrast as a minimum, entered to a contract of employment or other contract/ office and has become a member of the workforce with associated rights and responsibilities. The position in this case is very different to that in Gilham. In Gilham, although the claimant was not a worker or employee, she was an officeholder who was integrated into and operated as part of the workforce and who held a substantive and highly responsible judicial role (b) further the Tribunal is not satisfied the a job applicant such as the claimant (who applied to a local authority for financial positions) is in an analogous situation to a job applicant who applied for a role with an NHS employer/body where staff, with specialist medical and associated skills, regularly transfer between such organisations and where patient safety is of paramount importance.

(iii) Is the reason for that less favourable treatment one of the listed grounds in

Article 14 of the Convention

rights or some “other status?” The Tribunal is not satisfied that a “job applicant” which is a very wide and generic grouping constitutes, particularly having regard to the matters previously referred to at paragraph (ii) above, some “other status” for the purposes of

Article 14 of the Convention

Rights.

(iv) Is the difference without reasonable justification – the Tribunal is, in any event, satisfied on the basis of the available information that there is reasonable justification for the difference in treatment between a generic and very wide ranging group of job applicants, who otherwise have no relationship with the organisation (to which the claimant belongs), and the categories which Parliament has chosen to protect namely :- (a) employees/ workers who work or have worked for the organisation and (b) those that apply to NHS employers ( as defined). The situation in this case is very different to that in Gilham. Moreover, the Tribunal is strengthened in its view by the fact the EU, who considered the position of job applicants in 2019 chose to limit its protections to those job applicants who had gained “information of breaches” during the recruitment process.

[81]For the avoidance of doubt the Tribunal is not satisfied that the claimant’s reliance on the Enterprise and Regulatory Reform Act 2013 (which was the mechanism by which the meaning of the term worker was extended by the amendment of section 43 K of the Act) adds anything to the above deliberations and this is therefore not separately addressed.

[82]In all the circumstances, the Tribunal is not satisfied that it has jurisdiction to entertain the claimant’s complaint of detrimental treatment for making a protected public interest disclosure which complaint is therefore dismissed. Issue 1.2 – whether in respect of the claimant’s complaint of victimisation relating to the respondent’s refusal on 18 September 2020 to allow the claimant to pursue an appeal against the outcome of a complaint under the respondent’s complaints procedure the claimant was an applicant for the purposes of Section 39 of the 2010 Act.

[83]The Tribunal has had regard to section 39 (3) of the 2010 Act which states that: - “An employer(a) (A) must not victimise

(b) (B) – (a) In the arrangements A makes for deciding to whom to offer employment (b) As to the terms on which A offers B employment and,

[84]The Tribunal has also had regard to paragraph 10.8 of the Equality and Human Rights Commission Code of Practice on Employment (2011) (“the Code”) concerning what constitutes “arrangements”.

[85]Paragraph 10.8 of the Code states as follows: - “Arrangements refer to the policies, criteria and practices used in the recruitment process including the decision-making process, “Arrangements” for the purposes of the Act are not confined to those which an employer makes in deciding who should be offered a specific job. They also include arrangements for deciding who should be offered employment more generally. Arrangements include such things as advertisements for jobs, the application process and the interview stage”.

[86]In summary, the claimant contends that :-(a) the respondent has accepted for the purposes of this hearing, that the claimant has / may have done a protected act

(b) notwithstanding that the claimant may not have complained about the outcome of the recruitment process, the refusal by the respondent to allow the claimant a right of appeal under its Complaints Policy regarding the alleged conduct of the respondent during the interviews is part and parcel of the recruitment process and therefore comes within the definition of “ arrangements” for the purposes of section 39 of the 2010 Act.

[87]In summary, the respondent contends as follows:-(a) the victimisation detriment claims pursued by the claimant are (i) the rejection of the claimant for the posts in November 2019 and December 2019 (Issue

7.3.1 ) and (ii) the refusal to allow the claimant a “grievance appeal” namely an appeal under the respondent’s Complaints Policy in September 2020 (Issue

7.3.2 )

(b) the respondent accepts that the alleged detriments identified at 7.3.1 are justiciable by reason of section 39 (3) of the 2010 Act

(c) the respondent however contends that the alleged detriment identified at (ii) above is not justiciable as the respondent’s complaints procedure does not fall within the arrangements which the respondent makes for deciding to whom to offer employment or as to the terms on which employment is offered for the purposes of sections 39 (3) (a) or 39 (3) (b) of the 2010 Act

(d) it would be a different position if the claimant’s appeal had been in respect of the decision not to appoint her to the posts however this is not the position in this case and

(e) further the “ arrangements” for the purposes of deciding whether the claimant should be appointed to the posts ceased in December 2019 and the claimant’s complaint did not prolong the selection process. The claimant’s complaint and subsequent refusal to allow her to pursue a complaint against the outcome thereof is in essence one step removed from the selection process for the purposes of section 39 of the 2010 Act.

[88]Having given careful consideration to all of the above, the Tribunal is satisfied that the Tribunal does have jurisdiction pursuant to section 39 (3)(a) of the 2010 Act to entertain the claimant’s complaint of victimisation pursuant to section 27 of the 2010 Act in respect of the respondent’s refusal to allow the claimant to pursue a “grievance appeal” under the respondent’s complaints procedure (Issue 7.3.2).

[89]The Tribunal rejects the contentions of the respondent that the fact that the alleged detriment namely, the refusal of a right of appeal against the outcome of a complaint under the respondent’s Complaint policy falls outside the ambit of “ arrangements” for the purposes of section 39 (3) of the 2010Act. When reaching its conclusions the Tribunal has taken into account in particular, the following matters:-(a) that it is clear from paragraph 10.8 of the Code that the word “ arrangements” should be widely construed, that they are not limited to deciding who should be offered a specific post and that it includes the interview stage

(b) the claimant’s complaint relates to the alleged conduct by the respondent’s staff at such interviews which interview process was part of the arrangements which the respondent put into place to decide who should be appointed to the relevant posts

(c) as a job applicant (rather than an employee) the only policy available to the claimant to allow her to pursue a complaint concerning the alleged conduct of the interviews in question was the respondent’s Complaints policy which also afforded her a right of appeal (which was refused by Ms Shand on the particular facts of the case rather than on any “jurisdictional “ grounds). The Tribunal has also had regard to the fact that the Ombudsman, according to the draft decision at pages of pages 41-42 of Section C of the bundle and paragraph 53 above, refused to investigate the claimant’s subsequent complaint as it related to an employment matter which it stated it was not entitled, as a matter of law, to investigate.

[90]In all the circumstances the Tribunal is satisfied that it has jurisdiction to consider the claimant’s complaint regarding the respondent’s refusal to permit the claimant to pursue an appeal under the respondent’s Complaints Policy (Issue 7.3.2). Issue 1.3 – whether any permitted claims were, in any event, presented within the relevant time limits and if not in respect of any permitted complaints of sex discrimination ( direct sex discrimination or victimisation) (as the only remaining claims) it is nevertheless just and equitable to allow them to proceed.

Background

[91]In the light of the dismissal of the claimant’s complaint of protected public interest disclosure detriment the claimant’s remaining extant claims are as follows: -(1) Direct sex discrimination (section 13 of the 2010 Act) - (Issue 5.3 of the CMO) relating to (a) the alleged conduct /comments made by Mr Porter regarding the claimant’s bottom during the interview on 31 October 2019 (Issue

5.3.1 ) and (b) the alleged comments made by Mr Higginson during the interview on 5 December 2019 (issue

5.3.2 ) regarding the claimant taking contraception to help with her skin problems.

(2) Victimisation (section 27 of the 2010 Act) – (paragraph 7.3.1. of the Order) relating to the refusal by the interview panel (Ms Martin, Mr Porter and Mr Philbrick) to appoint the claimant to the post of DPSS Accounts officer (4 November 2019) and /or the refusal of the interview panel (Ms Martin, Mr Porter and Mr Higginson) to appoint the claimant to the post of Direct Payment officer (10 December 2019) and,

(3) The refusal by Ms Shand (on 18 September 2020) to allow the claimant to pursue an appeal under the respondent’s Complaints Policy in respect of (1) above (Issue 7.3.2).

[92]It was agreed between the parties, that having regard to the dates of the ACAS Conciliation process (notification received by ACAS on 18 September 2020 with the Early Conciliation Certificate issued on 18 October 2020) and the subsequent presentation of the claimant’s claim form on 14 November 2020, any act occurring before 19 June 2020 was not presented within the statutory time limit.

[93]This means that allegation (3) above was presented in time. The remaining allegations(1) and

(2) were not however, presented within the statutory time limit unless they constitute conduct extending over a period (ending with

(3) above) for the purposes of 123 (3) of the 2010 Act and/or the Tribunal, in any event, considers it just and equitable to extend time to allow them to proceed (section 123 (1) (b) of the 2010 Act.

[94]When the matter was listed for this Preliminary Hearing Issue 1.3 was included by the Employment Judge ( who is also the Employment Judge at this preliminary hearing) in the light of the respondent’s contentions (and associated application) (paragraph 3 of the CMO) that the claimant’s claims in respect of allegations(1) and

(2) above (relating to the interviews in October and December 2019 and the claimant’s rejection for the posts) were presented outside the statutory time limits and further, that the claimant was unable to pursue the latter claim (allegation 3), in respect of the refusal by Ms Shand on 18 September 2020 to allow the claimant to pursue an appeal under the respondent’s complaints procedure, because of lack of status. The focus of the time issue in paragraph 1.3 of the CMO was therefore on whether, if the Tribunal did not have jurisdiction to entertain allegation

(3) and allegations (1) and (2) were prima facie out of time, it was nevertheless just and equitable to allow such claims to proceed. The Tribunal went on to give directions for the preparation for and conduct of the Preliminary Hearing including for the exchange of documents and witness statements limited to the preliminary issues.

[95]The Tribunal further stated in the CMO (paragraph 5) that it was open to the Tribunal conducting this Preliminary Hearing to decide on the basis of the information available to it that any of the time or associated issues were not suitable for determination at a Preliminary Hearing and should therefore be deferred to the full merits hearing.

[96]It was recognised at this Preliminary Hearing that if, which has subsequently found to be the case, the Tribunal held that it had jurisdiction pursuant to section 39 of the 2010 Act to entertain the claimant’s complaint of victimisation in respect of the refusal by Ms Shand on 18 September 2020 to allow her to pursue an appeal under the respondent’s Complaints Policy (allegation (3) above) that there would also / alternatively be an issue as to whether the earlier alleged acts of direct sex discrimination / victimisation formed part of a course of conduct extending over a period for the purposes of section 123 (3) of the 2010 Act. The claimant asserts in her particulars of claim that there was such a course of conduct.

[97]The Tribunal has had regard in particular to the following statutory provisions/ and legal authorities :- Section 123 of the 2010 Act Paragraphs 15.20 – 15.32 of the Code Tyagi v BBC World Service

[2001] IRLR 465

CA Hendricks v Commissioner of Police for the Metropolis

[2002] IRLR 96

CA. Aziz v FDA [ 2010] EWCA Civ 304 (paragraphs 35 and 36) CA Arthur v London Eastern Railway Ltd

2007 IRLR 58

CA E v 1) X2) L& 3)X and L v X2)Z& 3)E UKEAT0079/20/ RN and 0080/20/RN (with the further EAT Judgment referred to therein of Caterham School Limited v Rose 0149/19/RN,( the Tribunal drew these authorities to the attention of the parties). Adedeji v university Hospitals Birmingham NHS Foundation Trust

2021 EWCA Civ 23

[98]In brief summary, the respondent made the following submissions regarding time limits:-(a) if the Tribunal decides that it has jurisdiction to entertain Issue 7.3.2 (refusal to allow the claimant to pursue a “grievance appeal” on 18 September 2020) the earlier claims of sex discrimination / victimisation are nevertheless still out of time as there is no conduct extending over a period

(b) the acts which allegedly occurred in 2019 (relating to the alleged comments at the two interviews and the refusal to appoint the claimant to either of the two posts, are of a completely different character/ involve different people to those involved in the refusal to allow the claimant a “grievance appeal”

(c) if the claimant is allowed to proceed with the earlier allegations the respondent will be required to respond to stale allegations involving time and expenditure of public money and the prejudice to the respondent would be greater than that caused to the claimant

(d) the claimant was unable to provide any reason for not bringing her claims sooner which she admitted was due to her stupidity/ her own mistake/ error (d) there was no mistake of law or fact on the part of the claimant who is a part qualified accountant and who is clearly well versed in what she needed to do to bring a claim(e) the respondent recognised however (having regard to the authorities referred to above) that if the Tribunal held that it had jurisdiction to entertain the claimant’s complaint regarding the refusal by Ms Shand on 18 September 2020 of an appeal under the respondent’s Complaints Policy ( allegation (3)) the respondent’s submissions on time were likely to be more relevant to any considerations of strike out/ deposit than jurisdiction as to time.

[99]The claimant’s submissions – in brief summary the claimant made the following submissions:-(a) the claimant contends that there was a continuing course of conduct by the respondent which extended from the conduct at the interviews/ the rejection of the claimant’s applications for the posts to the refusal by the respondent to allow the claimant a right of appeal against the rejection of her complaint relating to the alleged conduct of the interviews

(b) the Tribunal is in any event requested, if permissible, to extend time to allow any claims which are found to be out of time to proceed including as the claimant denies that the earlier ( allegations (1) and (2) above) are stale allegations/ that the respondent would in, any event, be prejudiced by the pursuit of such claims. The claimant contends for such purposes, that the claimant’s complaint regarding the conduct of the interviews was pursued pursuant to the respondent’s Complaints policy as part of which the claimant submitted transcripts of the interviews, the officers concerned were given an opportunity to respond, an investigation was undertaken and a report complied and the pursuit of such allegations would not therefore put the respondent to any significant inconvenience or expense.

[100]After giving the matter careful consideration, the Tribunal is not satisfied that in the circumstances of this case, including in particular that the Tribunal has held that it has jurisdiction to determine the allegation (issue 7.3.2 / (allegation (3)) relating to the refusal by Ms Shand to allow the claimant on 18 September 2020 to pursue an appeal against the rejection of her complaint pursuant to section 39 of the 2010 Act (which complaint was presented within the relevant statutory time limit), it is appropriate for the Tribunal to determine Issue 1.3 ( the time point) at this preliminary stage. When reaching this conclusion, the Tribunal has taken into account in particular, the following matters: -(1) The Tribunal’s finding that the Tribunal has jurisdiction to entertain issue 7.3.2 of the Order (also referred to as allegation (3) above, relating to the refusal of the respondent to allow the claimant to pursue an appeal against the rejection of her complaint, which gives rise to the question of whether the earlier allegations (Issue 5.3.1, 5.3.2 and 7.3.1 ( also referred to above as allegations (1) and

(2) ) form part of a course of conduct extending over a period ending on 18 September 2020. If the claimant is able to satisfy the Tribunal that there was such course of conduct the earlier allegations would therefore be in time. (2) The useful guidance/ reminders contained in the EAT Judgments of E X1) (paragraphs 46 -50) and Caterham (paragraphs 58 – 66 ) on the correct approach to be adopted at a Preliminary Hearing when considering a preliminary issue such as whether there has been a course of conduct extending over a period for the purposes of section 123

(3) of the 2010 Act. The above Judgments highlight that a different, more rigorous, approach is required for the definitive determination of a preliminary issue as to time (which cannot be revisited at the final hearing) compared to the determination of a strike out / deposit application. The former requires formal findings of fact to be made concerning the incidents in question so as to allow a proper assessment of whether they can properly be regarded as part of a course of conduct. (3) When this case was listed for a Preliminary Hearing there was a live issue as to whether the Tribunal had jurisdiction to entertain the claimant’s complaint (Issue 7.3.2/ allegation (3)), concerning the refusal to allow her to pursue an appeal against the rejection of her complaint, pursuant to section 39 (3) of the 2010 Act and a clear understanding that if it did not have jurisdiction to do so there was also a live issue as to whether the claimant’s remaining complaints were out of time ( as reflected in the wording of Issue 1.3).

(4) There was a paucity of sworn oral evidence before the Tribunal at the Preliminary Hearing regarding what happened at the interviews on 31 October 2019 and 5 December 2019 (Issues

5.3.1 and

5.3.2 (allegation (1)) and also regarding some aspects of Issue 7.3.1 (the rejection of the claimant for the posts) (allegation 2). The claimant relied in respect of Issues 5.3.1 and 5.3.2 on the alleged transcripts of the interviews which are disputed by the respondent. Further a number of relevant matters were not fully addressed in the claimant’s witness statement/ written submissions which required further clarification by the Tribunal as recorded at the beginning of this Judgment (including by way of example with regard to the nature of the protected acts) and in respect of which the respondent will need an opportunity to respond in the light of such clarification. Further there was an absence of any information/ oral evidence from the respondent regarding its account of the relevant interviews/ reason for the rejection of the claimant’s applications for the posts other than a strong denial of any wrongdoing in the respondent’s response form. Moreover, the Tribunal was not provided with any details of the respondent’s investigation into/ the outcome of the claimant’s complaint regarding the conduct of the interviews other than the brief explanation given in Ms Shand’s letter dated 18 September 2020 / the respondent’s response.

(5) In all the circumstances, the Tribunal is not satisfied that :- (a) it has sufficient information before it to make a proper determination of whether the conduct alleged at Issues 5.3.1, 5.3.2 and 7.3.1 occurred/ formed part of a course of conduct extending over a period for the purposes of section 123 (3) of the 2010 Act and (b) that it would be appropriate for it to determine in isolation, as there is a live issue as to whether this is a case in which there has been conduct extending over a period, any issues relating to any just and equitable extension of time.

(6) The Tribunal is further satisfied in the light of all the above, that the most appropriate course of action is for any time issues to be determined at the final hearing. Issue 1.4 Whether the claimant should be permitted to amend her claim form to add a complaint of disability discrimination.

[101]As stated previously above the claimant confirmed that she does not wish to pursue any complaint of disability discrimination and the Tribunal is therefore no longer required to determine this Issue. Issue 1.5 Whether the claimant’s claims (or any of them) should, in any event, be struck out and/or a deposit ordered as a condition of proceeding on the grounds respectively that they have no or little reasonable prospect of success

[102]The Tribunal has had regard in particular to the following: - The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (including Schedule 1 – Regulations 2, 37 & 39.

Article 6 of the Convention

rights contained in Schedule 1 to the 1998 Act. The legal authorities referred to above in respect of Issue 1.3 (and in particular the guidance contained in the authorities of Aziz, E v1 and Caterham. The further authorities referred to in the claimant’s closing submissions namely: - Anyanwu & anor v South Bank Union & anor

[2001] ICR 391

CA, Ezsias v North Glamorgan NHS Trust [2007]ICR 1128, Sharma v New College Nottingham UK EAT /0287/11/ LA EAT. The submissions

[103]The Tribunal has had regard to the submissions of the respective parties. In very brief summary, the claimant contends that the legal authorities caution against striking out in discrimination cases, which are generally fact sensitive, save in the most exceptional of circumstances. The Tribunal had also had regard to the submissions of the respondent (including as they had previously been contended in relation to the time limits issues at Issue 1.3 above). The Tribunal has also taken into account that the respondent acknowledged during oral closing submissions that if the Tribunal held that it had jurisdiction to entertain Issue 7.3.2 (allegation (3)) relating to the refusal of a right of an appeal) (as is the case) it would not be pressing the Tribunal to make strike out or deposit orders as the issues would need to be ventilated before a Tribunal.

[104]Having given very careful to all of the above, the Tribunal is not satisfied that it is appropriate to make strike out or deposit orders in respect of any of the extant issues for the following reasons: -

[105]Issues5.3.1 and

5.3.2 (the alleged comments/ conduct by Mr Porter at the interview on 31 October 2019 and the alleged comments by Mr Higginson at the interview on 5 December 2019). These allegations are fact sensitive. The claimant contends that the comments/ conduct occurred the respondent denies the allegations. When considering these allegations the Tribunal has taken into account that on face it of the claimant’s “alleged transcripts” of the interviews contain accounts of extremely wide ranging discriminatory/ inappropriate behaviour on the part of the respondent giving rise to questions as to whether it is inherently probable that mangers of the respondent would have acted in such a manner. The Tribunal has not however had the benefit of the respondent’s account of either of the interviews (including as may have been contained in the investigation report referred to in Ms Shand’s letter dated 18 September 2020 at pages 32 – 34 of Section C of the bundle) other than the general and vehement denial of the allegations contained in the respondent’s response.

[106]Issue 7.3.1 (refusal to appoint the claimant to the posts of DPSS Account officer (4 November 2019) and/or Direct Payments Officer (10 December 2019). The respondent has acknowledged (as recorded above) that the claimant has identified for the purposes of this Preliminary Hearing potential protected acts / that the claimant’s case is brought on the alternative basis that alleged detriments were perpetrated because the respondent, in any event, believed that the claimant had done, or might do, a protected act (Issue 7.6 of the CMO). Further, the Tribunal has not at this stage been provided by the respondent with any reasoned explanation as to why the claimant was unsuccessful in her applications.

[107]Issue 7.3.2 (refusal to allow the claimant to pursue an appeal under the respondent’s complaints procedure). The position is as for Issue 7.3.1 above with regard to the alleged protected acts. Further, there is no explanation in the letter of Ms Shand dated 18 September 2020 (page 32 of Section C of the bundle) of the reasons why the respondent concluded that the claimant’s allegations were unfounded and/or why it was considered necessary to refuse the claimant the right of an appeal including why such refusal was considered necessary to protect the respondent’s employees.

[108]Further, the Tribunal has considered whether it is appropriate to strike out and/or order a deposit in respect of the allegations preSeptember 2020 on the grounds that there is no or little reasonable prospect (even taking the claimant’s claims at their highest) of the claimant establishing that there was a course of conduct extending over a period and/or that it is, in any event, just and equitable to extend time. The Tribunal has had regard to the guidance contained above including the helpful guidance contained at paragraph 50 of E v 1 together with the Tribunals findings concerning Issue 1.3 (time limits).

[109]Having regard to all of the matters previously ventilated above, the Tribunal is not satisfied on the basis of the available information that there is no or little reasonable prospect of the claimant establishing that that the various acts are so linked as to be continuing acts, or to constitute an ongoing state of affairs.

[110]When reaching such conclusion, the Tribunal has taken into account the difficulties which the claimant may have in establishing a course of conduct having regard in particular to :-(a) the length of time between the alleged discriminatory conduct (November / December 2019 and September 2020) and

(b) the different nature of the alleged conduct and different individuals involved. The Tribunal has however balanced against such considerations the factual matters in dispute and the limited information currently available from the respondent regarding such matters. The Tribunal has also taken into account that the acknowledged in time allegation (Issue 7.3.2 relating to the refusal of an appeal) may (albeit that this will be an issue for the full Tribunal to decide) potentially be considered to be linked to the allegations of alleged misconduct at the interviews in 2019 (Issues

5.3.1 and

5.3.2 ) in the sense that it relates to an appeal against the respondent’s determination of the claimant’s complaint concerning the respondent’s alleged discriminatory conduct at such interviews.

[111]Notwithstanding that the Tribunal has declined to strike out the claimant’s extant complaints/ order a deposit order, the claimant is however encouraged to consider carefully whether she still wishes to pursue in particular, her allegations at Issues5.3.1 and

5.3.2 (the alleged conduct at the interviews). The claimant was undecided at both the original case management hearing and during this Preliminary Hearing as to whether she wished to pursue these allegations. The claimant perceptively observed during the Preliminary Hearing the difficulty of pursuing allegations which involve “a he said/ she said” situation. In situations like this, the burden is on the claimant to establish, on the balance of probabilities, the facts upon which she relies (including that they are facts from which the Tribunal could conclude in the absence of an adequate explanation from the respondent that they constitute unlawful discrimination). In this case the respondent vehemently denies in its response that the alleged conduct occurred and further disputes that the claimant’s alleged transcripts are an accurate account of what happened. When determining what happened during such interviews the Tribunal conducting the case will have to determine, on the balance of probabilities, and having weighed any relevant oral and documentary evidence, what occurred. As part of that exercise a Tribunal is also likely to take into account, whether given the alleged nature of the alleged discriminatory / inappropriate comments and behaviour by the respondent’s officers during such interviews, it is inherently likely that they would have acted in such a manner.

[112]The claimant is therefore allowed to proceed with her claims of direct sex discrimination and victimisation (as identified above) to a full merits hearing, at which any relevant time issues will be determined by the Tribunal. Further directions for the future conduct of the matter will therefore be given in a separate case management order.

[113]If the claimant does so, the second stage requires the respondent to demonstrate that the protected characteristic was in no sense whatsoever connected to the treatment in question. That requires the Tribunal to assess not merely whether the respondent has proven an explanation, but that it is adequate to discharge the burden of proof on the balance of probabilities that the protected characteristic was not a ground for the treatment in question. If it cannot do so, then the claim succeeds. However, if the respondent shows that the unfavourable or less favourable treatment did not occur or that the reason for the treatment was not the protected characteristic the claim will fail.

[114]The explanation for the less favourable treatment advanced by the respondent does not have to be a ‘reasonable’ one; it may be that the employer has treated the claimant unreasonably. The mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one (London Borough of Islington v Ladele

[2009] IRLR 154

[115]Furthermore, it is not sufficient for the claimant simply to prove that there was a difference in status i.e. that the comparator did not share the protected characteristic relied upon by the claimant) and a difference in treatment. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an act of discrimination (see Madarassy v Nomura International Plc

[2007] ICR 867

CA; Hewage v Grampian Health Board

[2012] IRLR 870

SC and Royal Mail Group Ltd v Efobi

[2019] EWCA Civ 18

[116]The Tribunal does not have slavishly to follow the two-stage process in every case - in Laing v Manchester City Council and anor

[2006] ICR 1519

, EAT, Mr Justice Elias identified that ‘it might be sensible for a tribunal to go straight to the second stage… where the employee is seeking to compare his treatment with a hypothetical employee. In such cases the question whether there is such a comparator — whether there is a prima facie case — is in practice often inextricably linked to the issue of what is the explanation for the treatment.” That approach was endorsed by the Court of Appeal in Stockton on Tees Borough Council v Aylott

[2010] ICR 1278

[117]It is for the claimant to show that the hypothetical comparator in the same situation as the claimant would have been treated more favourably. It is still a matter for the claimant to ensure that the Tribunal is given the primary evidence from which the necessary inferences may be drawn (Balamoody v UK Central Council for Nursing Midwifery and Health Visiting

[2002] IRLR 288

). Detriment

[118]The test of a detriment within the meaning of section 39 EQA 2010 is whether the treatment is "of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?" (per Lord Hope in Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

;

[2003] ICR 337

, para 35).

[119]There is no need for a complainant to allege that things have been done which would be a breach of the Equality Act (see Waters v Metropolitan Police Comr

[1997] IRLR 589

, per Waite LJ: 'The allegation relied on need not state explicitly that an act of discrimination has occurred – that is clear from the words in brackets in s 4(1)(d). All that is required is that the allegation relied on should have asserted facts capable of amounting in law to an act of discrimination by an employer within the terms of s 6(2)(b).'

[120]Similarly, there is no requirement for a complaint to identify expressly that the allegation is of discrimination in relation to one of the protected characteristics (see Durrani v London Borough of Ealing

UKEAT/0454/2012

(10 April 2013, unreported) per Langstaff J: “22.I would accept that it is not necessary that the complaint referred to race using that very word. But there must be something sufficient about the complaint to show that it is a complaint to which at least potentially the Act applies.” 23. The Tribunal here thus expressly recognised that the word “discrimination” was used not in the general sense familiar to Employment Tribunals of being subject to detrimental action upon the basis of a protected personal characteristic, but that of being subject to detrimental action which was simply unfair.… 27. This case should not be taken as any general endorsement for the view that where an employee complains of “discrimination” he has not yet said enough to bring himself within the scope of Section 27 of the Equality Act. All is likely to depend on the circumstances, which may make it plain that although he does not use the word “race” or identify any other relevant protected characteristic, he has not made a complaint in respect of which he can be victimised. It may, and perhaps usually will, be a complaint made on such a ground.'' Time limits Conduct extending over a period

[121]Section 123(3)(a) EqA 2010 provides that “conduct extending over a period is to be treated as done at the end of the period.”

[122]An ‘act extending over a period’ (also known as a ‘continuing act’) may arise not solely from a policy, rule, scheme, regime or practice but also from ‘an ongoing situation or continuing state of affairs’ (Hendricks v The Commissioner of Police for the Metropolis

[2003] IRLR 96

, CA, paras 51-52 per Mummery LJ, approved by the Court of Appeal in Lyfar v Brighton and Sussex University Hospitals Trust

[2006] EWCA Civ 1548

, CA).

[123]In Coutts & Co plc v Cure

[2005] ICR 1098

, EAT, the Employment Appeal Tribunal (HHJ McMullen QC presiding), setting out categories into which the factual circumstances of alleged discrimination may fall, found (albeit obiter) that there are two types of situation in which alleged discrimination may constitute an ‘act extending over a period’: 123.1. where there is a discriminatory rule or policy, by reference to which decisions are made from time to time; and 123.2. where there have been a series of discriminatory acts, whether or not set against a background of a discriminatory policy.

[124]In the former case, an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur

[1989] IRLR 387

[125]In the latter case, the main issue for the Tribunal tends to be whether it is possible to identify some fact or feature linking the series of acts such that they may properly be regarded as amounting to a single continuing state of affairs rather than a series of unconnected or isolated acts (Hendricks). A single person being responsible for discriminatory acts is a relevant factor in deciding whether an act has extended over a period: Aziz v FDA

[2010] EWCA Civ 304

, CA.

[126]Therefore, whether the acts complained of are linked so as to amount to a “continuing act” is essentially a question of fact for the tribunal to determine.

[127]In cases where the act complained of by the claimant is not the mere existence of a policy but rather the application of that policy to the claimant, the Tribunal must consider the following question in relation to when that policy ceased to be applied to the claimant: “when did the continuing discriminatory state of affairs, to which the policy gave rise, come to an end?” (Fairlead Maritime Ltd v Parsoya

UKEAT/0275/15/DA

, HHJ Eady QC). The just and equitable discretion

[128]While employment tribunals have a wide discretion to allow an extension of time under the ‘just and equitable’ test in S.123, it does not necessarily follow that exercise of the discretion is a foregone conclusion in a discrimination case. Indeed, the Court of Appeal made it clear in Robertson v Bexley Community Centre t/a Leisure Link

[2003] IRLR 434

, CA at para 25, that when employment tribunals consider exercising the discretion under what is now S.123(1)(b) EqA, ‘there is no presumption that they should do so unless they can justify a failure to exercise the discretion. Quite the reverse, a tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time, so the exercise of the discretion is the exception rather than the rule.' The onus is therefore on the claimant to convince the tribunal that it is just and equitable to extend the time limit.

[129]These comments were endorsed in Department of Constitutional Affairs v Jones

[2008] IRLR 128

EAT and Chief Constable of Lincolnshire Police v Caston

[2010] IRLR 327

CA. However, As Sedley LJ stated in Chief Constable of Lincolnshire Police v Caston at paragraphs 31 and 32: “In particular, there is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised. In certain fields (the lodging of notices of appeal at the EAT is a well-known example), policy has led to a consistently sparing use of the power. This has not happened, and ought not to happen, in relation to the power to enlarge the time for bringing ET proceedings, and Auld LJ is not to be read as having said in Robertson that it either had or should. He was drawing attention to the fact that the limitation is not at large: there are statutory time limits which will shut out an otherwise valid claim unless the claimant can displace them. Whether a claimant has succeeded in doing so in any one case is not a question of either policy or law: it is a question of fact sound judgement, to be answered case-by-case by the tribunal of first instance which is empowered to answer it.”

[130]Before the Employment Tribunal will extend time under section 123(1)(b) it will expect a claimant to be able to explain firstly why the initial time period was not met and secondly why, after that initial time period expired, the claim was not brought earlier than it was (Per Langstaff J in Abertawe Bro Morgannwg University Local Health Board v Morgan).

[131]However, this does not mean that exceptional circumstances are required before the time limit can be extended on just and equitable grounds. The law does not require exceptional circumstances: it requires that an extension of time should be just and equitable - Pathan v South London Islamic Centre EAT 0312/13.

[132]In exercising their discretion to allow out-of-time claims to proceed, tribunals may also have regard to the checklist contained in S.33 of the Limitation Act 1980 (as modified by the EAT in British Coal Corporation v Keeble and ors

1997 IRLR 336

, EAT, at para 8). S.33 deals with the exercise of discretion in civil courts in personal injury cases and requires the court to consider the prejudice that each party would suffer as a result of the decision reached, and to have regard to all the circumstances of the case, in particular:(a) the length of and reasons for the delay;

(b) the extent to which the cogency of the evidence is likely to be affected by the delay;

(d) the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and

(e) the steps taken by the claimant to obtain appropriate professional advice once he or she knew of the possibility of taking action.

[133]However, although, in the context of the 'just and equitable' formula, these factors will frequently serve as a useful checklist, there is no legal requirement on a tribunal to go through such a list in every case, 'provided of course that no significant factor has been left out of account by the employment tribunal in exercising its discretion' (Southwark London Borough v Afolabi

[2003] EWCA Civ 15

[2003] IRLR 220

at para 33, per Peter Gibson LJ).

[134]In Department of Constitutional Affairs v Jones

2008 IRLR 128

, CA, the Court of Appeal emphasised that these factors are a ‘valuable reminder' of what may be taken into account, but their relevance depends on the facts of the individual cases, and tribunals do not need to consider all the factors in each and every case. No one factor is determinative of the question as to how the Tribunal ought to exercise its wide discretion in deciding whether or not to extend time. However, a claimant’s failure to put forward any explanation for delay does not obviate the need to go on to consider the balance of prejudice.

[135]A tribunal considering whether it is just and equitable to extend time is liable to err if it focuses solely on whether the claimant ought to have submitted his or her claim in time. Tribunals must weigh up the relative prejudice that extending time would cause to the respondent on the one hand and to the claimant on the other: Pathan v South London Islamic Centre EAT 0312/13 and also Szmidt v AC Produce Imports Ltd UKEAT 0291/14.

[136]It is always necessary for tribunals, when exercising their discretion, to identify the cause of the claimant's failure to bring the claim in time (Accurist Watches Ltd v Wadher

UKEAT/0102/09

[2009] All ER (D) 189

(Apr)). In Wadher Underhill J stated that, whilst it is always good practice, in any case where findings of fact need to be made for the purpose of a discretionary decision, for the parties to adduce evidence in the form of a witness statement, with the possibility of cross-examination where appropriate, it was not an absolute requirement of the rules that evidence should be adduced in this form.

[137]A tribunal is entitled to have regard to any material before it which enables it to form a proper conclusion on the fact in question, including an explanation for the failure to present a claim in time, and such material may include statements in pleadings or correspondence, medical reports or certificates, or the inferences to be drawn from undisputed facts or contemporary documents.

[138]A delay caused by a claimant invoking an internal grievance or disciplinary appeal procedure prior to commencing proceedings is just one factor to be taken into account by a tribunal when considering whether to extend time: Robinson v Post Office

[2000] IRLR 804

, EAT, approved by the Court of Appeal in Apelogun-Gabriels v London Borough of Lambeth

[2002] ICR 713

. As the EAT said in Robinson (para. 25, per Lindsay P): “as the law stands an employee who awaits the outcome of an internal appeal and delays the launching of an [ET1] must realise that he is running a real danger.”

[139]A failure to provide an explanation for the delay is fatal to an application because there is no evidence upon which the tribunal could exercise its discretion Habinteg Housing Association Ltd v Holleron EAT 0274/14 confirmed in Edomobi v La Retraite RC Girls School EAT 0180/16 Discussion and Conclusions Sex Discrimination

Discussion and Conclusions

[140]The claimant’s allegations are, as we have indicated, made in the context of an alleged series of events which are the most bizarre, improbable, and incomprehensible the Tribunal members have ever encountered. That does not mean that the events which the claimant relies upon cannot have occurred or that we reject them because they are made against such a background. However, it does mean that the weight and cohesion of the evidence required to establish that they occurred on the balance of probabilities would be higher than might be required for other allegations.

[141]In this case, the following factors are relevant to that assessment: 141.1. The claimant’s emails to Miss Martin after the interviews make no reference to any of the allegations and are inconsistent with them having occurred. 141.2. The allegations which are now pursued were not identified in the police report in January 2020, where the focus was upon the alleged comment that the claimant was mentally insane and Mr Porter’s suggestion that he would slap the claimant around a bit. 141.3. The allegations were not made in the initial report to Mr Metcalf in February 2020; the claimant’s focus in those complaints was the police report above and her concerns about Mr Porter’s involvement in the Shanklin Shine Trust. 141.4. The allegations were not made in the claimant’s complaints to the CQC or to Mr Tomlinson MP in March 2020; the claimant’s focus in those complaints was again upon the allegation that she had been told that she was mentally insane. 141.5. The allegations were first made in July 2020, seven months after the events; even then the claimant amended her account. The account was a mixture or recollection, comment, and hypothesis. 141.6. The claimant did not make herself available for interview to provide further explanation of or detail in connection to the allegations. Whilst it was understandable that she did not wish to travel for an in-person interview, she did not request a video interview or respond to Mrs Bett’s offer that she could telephone her to provide more detail if she wished. 141.7. In contrast, those whom the claimant had made the allegations against were interviewed and each vehemently denied all of the allegations. The overarching sense of their interviews is one of shock; each repeated that the claimant’s version of events simply did not happen. 141.8. The claimant did not provide a full account of the events alleged to be discrimination in her witness statement, she relied instead (in the statement) upon the reports she had prepared.

[142]The claimant did not cross examine any of the witnesses to suggest that the interviews had been conducted in the manner suggested in the reports she had prepared. It was noticeable that the claimant did not suggest, with the exception of the post office matter, that they had acted in any of the bizarre or distressing manners alleged. She did not for example, suggest to Miss Martin or Mr Philbrick that Mr Porter had made the comments relied upon as sex discrimination. She did not explore the sequence of events immediately before or after the comment was allegedly made with either witness. She did not seek confirmation of the fact that she had turned round and bent to place her bag on the floor, or what she was wearing. She did not suggest to Mr Philbrick or Miss Martin that she had suggested that her skirt was the wrong way round, or that Mr Porter had acted in any of the ways detailed in her ‘transcript’ of the interview. She did not suggest to Mr Philbrick that he had acted in any of the ways she alleged, including shouting out “boobs.”

[143]It was only when we insisted that the claimant put her case to Mr Higginson in relation to the specific allegation of sex discrimination that she levelled at him that she did so. That was despite my explaining very carefully and clearly at the outset of the hearing the need for the claimant to suggest to the witnesses what she said had happened, so that they could comment upon it.

[144]Instead, the claimant’s challenge was based entirely on the small points by which we infer, although she did not expressly make the connection, she sought to challenge the respondent’s witnesses’ credibility and thereby to argue that her account should be preferred. Those points were however entirely inconsequential and capable of explanation. By way of example: 144.1. Whether a reference to the Post Office was mentioned during the interview – we found that it was not 144.2. Whether the claimant was late or on time for the December 2019 interview – we preferred the respondent’s account; 144.3. Whether Mr Philbrick had made a fourth bullet point on the Scoring Proforma because he was anticipating that the claimant would refer to her employment with Gurit – we unhesistatingly preferred his evidence that he had merely put such a bullet point in readiness for the claimant’s next point.

[145]There was not, in our judgment, a shred of cogent evidence upon which we could have concluded that the remarks the claimant’s alleges were made were in fact made. In reaching that conclusion we have considered that Mr Porter did not give evidence. We did not therefore hear direct evidence from him that he did not make the remarks alleged. However, the claimant did not suggest to Mr Philbrick or Miss Martin, who were present, that he had, and we had evidence in the form of their denials and Mr Porter’s denials of the allegations in the investigation; we found those to be genuine and credible.

[146]The claimant has therefore not persuaded us on the balance of probabilities that the remarks were made.

[147]The respondent accepts that the claimant has proved the protected acts. However, the claimant accepted that each of the pleaded protected acts occurred after the interviews. She accepted that as a matter of logic and chronology they cannot have influenced the decision. The only remaining potential route for the claimant is therefore to establish that the detriments were done because the respondent believed that the claimant had done or may do a protected act.

[148]The claimant did not suggest to Miss Martin, Mr Philbrick or Mr Higginson that they knew or suspected that she had done any protected act, save that she alleged that Mrs Martin had said ‘Post Office’ and (again by implication because she did not make the connection express to Miss Martin) that that was a reference to her claim against the post office and Miss Martin knew(a) that it included allegations of discrimination and

(b) that that had caused or influenced the rejection of her application. We found that Miss Martin did not make such a remark.

[149]We take into account the evidence which was available to us of the reason for the claimant’s rejection from the posts. That consists of the interview score sheets, the witness accounts of the claimant’s bizarre responses to questions which did not answer the questions asked, Miss Martin’s email to the claimant after the first interview identifying that the preferred candidate had the most recent relevant experience, and, in relation to the second interview, the agreed fact that the claimant had sent documents to Miss Martin after the hearing but before the decision was made which were unrequested, bizarre and strange.

[150]The claimant has not, therefore, adduced evidence from which we could infer, properly directing ourselves that the reason that the claimant was not appointed to either role for which she was interviewed was the respondent’s belief that she had done or was likely to do a protected act.

[151]In any event, we accept the respondent’s positive account for the reason for the claimant’s rejection for the roles.

[152]Lastly we considered the reason for the respondent’s refusal to offer the claimant a stage 2 review. The respondent accepts that this is a detriment – the issue is therefore one of causation: what was the reason that Mrs Shand opted not to offer the stage 2 review? At the time that Mrs Shand made decision the claimant had done the protected acts. We must therefore ask ourselves whether she has adduced sufficient evidence upon which we could, properly directing ourselves, conclude that they were more than a trivial influence on that decision.

[153]The claimant argues that she sent the documents which formed the protected acts to Mrs Shand and that therefore it was inevitable that she would have been influenced by them. Again, that was not a point that the claimant put to Mrs Shand during cross examination. Mrs Shand’s evidence was that she was not investigator, but rather a conduit for the information to be passed to the appointed investigator; therefore, she did not read the documents in any detail.

[154]We note that the allegations which form the protected acts are buried deeply within some of the documents which are often involved and lengthy in their detail. Secondly, they are not directly connected to the allegations which the claimant made about the conduct of those who interviewed her. It is logical therefore that to the extent Mrs Shand read the documents at all, the elements which constitute the protected acts would not have formed her focus. Mrs Shand’s account is therefore inherently plausible. Secondly, we found Mrs Shand to be a truthful and credible witness, we therefore accept her explanation for the decision, which was carefully detailed in her statement, which we also found to be credible and truthful. Thirdly, the claimant did not suggest to Mrs Shand that reason for her decision not to offer a stage 2 review was any of the protected acts or a belief that the claimant had done or may do protected acts.

[155]For those reasons, we were not persuaded that the claimant had adduced any evidence upon which we could conclude that the reason for the decision not to offer the stage 2 review was any of the protected acts or a belief that that the claimant had done or would do any of the protected acts.

[156]The claims of direct sex discrimination and victimisation are therefore not well founded and are dismissed. Rule 70 reconsideration

[157]We are conscious, because the parties have told us, that this claim has been appealed to the Employment Appeal Tribunal in relation to the determination of the preliminary issue as to the definition of a worker within the meaning of s.47B and 48 ERA 1996. The respondent indicates that it may cross appeal the decision that s.39(3) EQA 2010 can be construed to include a decision not to offer the stage 2 review.

[158]Having considered the Judgment and the materials which were considered in its production, it seems to us that it would be in the interests of justice for us to review the decision because it appears that the Judgment was reached without the benefit of consideration of the relevant European legislation which the Tribunal was obligated to consider when construing s.39 EQA 2010. Moreover, there is a benefit to the respondent and to the public at large more generally in the Employment Appeal Tribunal providing binding guidance on the construction of s.39(3) EQA 2010.

[159]The relevant national legislation is s.39(3) EQA 2010 which provides that (3) An employer (A) must not victimise a person (B)— (a) in the arrangements A makes for deciding to whom to offer employment;

[160]We note that s.40 EQA provides the right to remedy for harassment and s.39(1) the right to remedy for direct discrimination in relation to such conduct. This allegation however is not about the conduct, but about the process offered to consider that conduct. European Law

[161]The national law in the EQA 2010 was intended to ensure that the United Kingdom complied with its obligations arising from its membership of the European Union as set out below.

[162]The European Union and the United Kingdom are signatures to the International Labour Organisation and are therefore bound to give force to its conventions. ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111) provides as follows: Article 1 1. For the purpose of this Convention the term discrimination includes--(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;

(b) such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employers' and workers' organisations, where such exist, and with other appropriate bodies. 3. For the purpose of this Convention the terms employment and occupation include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment. Article 2 Each Member for which this Convention is in force undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.

[163]From 1 January 1973, the date on which the European Communities Act 1972 (“The 1972 Act”) came into force in the UK, until 31 January 2020, the date on which the European Union Withdrawal Act 1998 (“The Withdrawal Act”) came into force, the UK ceded its sovereignty over certain areas, including employment and discrimination law, to the EU.

[164]It was trite law (until 31 January 2020) that EU law had supremacy over domestic law in areas where the EU had legislative competence under the Treaties (see Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1, ECJ). That supremacy was underlined by section 3(2) of the 1972 Act, which required Courts and Tribunals to take judicial notice of the European Treaties, European legislation and decisions of the Court of Justice of the European Union (“CJUE”) in deciding cases before them.

[165]The 1972 Act was repealed by the Withdrawal Act. However, the supremacy of EU law and the jurisdiction of the CJEU during the transition period is preserved by section 1A of the Withdrawal Act. The transition period ended on 31 December 2020 (“IP Implementation Day” defined in s.39 of the European Union (Withdrawal Agreement) Act 2020 (“the 2020 Act”)).

[166]The obligation for the meaning of any retained EU law, such as the Equality Act 2010, (post transition) to be decided “in accordance with any retained case law of the CJEU and domestic courts and any retained general principle of EU law” is provided for in section 6 (particularly 6(3) and (7)) of the Withdrawal Act. Section 5(4) of the Withdrawal Act states that after exit day the EU Charter of Fundamental Rights is not part of UK law. The position appears therefore to be that the Tribunal must apply the principles from EU derived case law when determining matters to which EU-derived law relates, as only the Court of Appeal and Supreme Court are permitted to depart from them.

[167]It follows that for the purpose of this claim the effect of the existing decisions of the CJEU and the impact of the Treaties, Directives and other EU jurisprudence remains as described below. The Treaties

[168]In so far as is relevant, the Treaties with which the Tribunal is concerned in the present instance include: 168.1. The Treaty establishing the European Community (“TEC”), which was incorporated into the Treaty on the Functioning of the European Union (“TFEU”). 168.2. The Treaty on European Union (“TEU”) 168.3. The Treaty on the Functioning of the European Union, which was signed on 13 December 2007 and entered into force on in the UK on 1 December 2009. Article 10 of the TFEU identifies that “the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability age or sexual orientation.”

[169]Article 19(1) of TFEU, which incorporated Article 13(1) TEC, provides for the general principle of non-discrimination: “Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it on the Community, the Council … may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.”

[170]The following Directives were established under the enabling Articles of the Treaties, such as Article 19(1) above: 170.1. The EU Equal Treatment Framework Directive (number 2000/78) (“the Framework Directive”), which sets out a general framework for eliminating employment or occupational inequalities based on age, disability, religion or belief, and sexual orientation. 170.2. The Recast EU Equal Treatment Directive (no.2006/54) (“the Recast Directive”), which relates to ‘the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation’. It covers sex, pregnancy and maternity, marriage and civil partnership, and gender reassignment. The Charter of Fundamental Rights of the European Union

[171]The TFEU introduced the Charter of Fundamental Rights of the European Union into European primary law (“The Charter”). The Charter was given the same legal values as the Treaties from 7 December 2007, following the Treaty of Lisbon, with the effect that it acquired the definitive status of primary law within the legal order of the European Union, in accordance with Article 6(1) EU (see Kucukdeveci v Swedex GmbH & Co KG (KC-555/07) [2010] All ER (EC) 867 paragraph 22; 27).

[172]Article 21 of the Charter provides as follows: “Non-discrimination Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political any other opinion, membership of any national minority, property, birth, disability, age or sexual orientation shall be prohibited. (Emphasis added)

[173]Article 21 has direct effect with the consequence that where national legislation conflicts with the Charter rights, a national court must set aside the discriminatory provision of national law to guarantee individuals the legal protection afforded under Article 21 and guarantee the full effect of that Article (see Cresco Investigation GmbH v Achatzi C-193/17

[2019] IRLR 380

at paragraphs 77-78 and 80).

[174]That means that, by virtue of the commitment of fundamental rights laid down in Article 51(1) of the Charter, legislative acts adopted by the European Union institutions in this sphere must be assessed by reference to that provision and the Member States are bound by it in so far as they implement European Union Law (see Kucukdeveci at paragraphs 45 - 48). The Framework Directive

[175]The Framework Directive was the enabling provision by which the Fundamental Right of non-discrimination was extended beyond equal treatment on the basis of sex, nationality and race to include age, disability, religion and belief and sexual orientation.

[176]The deadline for transposing the Framework Directive into domestic law was the 2 December 2003 and the UK did this initially by way of Regulations (the Employment Equality (Sexual Orientation) Regulations 2003), and subsequently in the primary legislation now incorporated into the Equality Act 2010. The relevant parts of the Framework Directive are set out below.

[177]Recital (4) of the Framework Directive establishes “the right of all persons to equality before the law and protection against discrimination,” recognising that as a universal right included within the European Convention for the protection of Human Rights and Fundamental Freedoms. It expressly references ILO No 111.

[178]Recital (9) identifies that “Employment and occupation are key elements in guaranteeing equal opportunities for all and contribute strongly to the full participation of citizens in economic, cultural and social life and to realising their potential.” (emphasis added).

[179]Recital (11) identifies that discrimination based on religion or belief, disability, age or sexual orientation undermines the achievement of the objectives of the EC Treaty, particularly “the attainment of a higher level of employment and social protection”.

[180]Recital (27) provides, “In its Recommendation 86/379/EEC of 24 July 1986 on the employment of disabled people in the Community (7), the Council established a guideline framework setting out examples of positive action to promote the employment and training of disabled people, and in its Resolution of 17 June 1999 on equal employment opportunities for people with disabilities, affirmed the importance of giving specific attention inter alia to recruitment, retention, training and lifelong learning with regard to disabled persons.”

[181]Recital (30) provides, “The effective implementation of the principle of equality requires adequate judicial protection against victimisation.”

[182]Recital (35) provides, “Member States should provide for effective, proportionate and dissuasive sanctions in case of breaches of the obligations under this Directive.”

[183]Article 1 identifies the purpose of the Framework Directive as creating “a framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect on the Member States the principle of equal treatment.”

[184]Article 2 identifies that the “‘principle of equal treatment’ shall mean that there should be no direct or indirect discrimination whatsoever on the grounds referred to in Article 1.”

[185]Article 3 “Scope” provides that “Within the limits of the areas of competence conferred on the Community, this directive shall apply to all persons… In relation to…(a) conditions for access to employment, to selfemployment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion and

(b) Employment and working conditions, including dismissals and pay”.

[186]Article 11 provides Member States shall introduce into their national legal systems such measures as are necessary to protect employees against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment. (emphasis added)

[187]We pause to note that there is no article with the Framework directive which prescribes victimsation; that is left to national legislation, and, further, the prohibition passed to the national legislature is in respect of victimisation of employees, rather than workers or applicants. The term ‘person’ could have been used, as it was elsewhere in the Directive, but was not. The choice of ‘employees’ must therefore be taken to be deliberate and significant.

[188]Article 16 provides: “Member States shall take the necessary measures to ensure that:(a) any laws, regulations and administrative provisions contrary to the principle of equal treatment are abolished

(b) any provisions contrary to the principle of equal treatment which are included in contracts or collective agreements, internal rules of undertakings or rules governing the independent occupations and professions and workers’ and employers’ organisations are, or may be, declared null and void or are amended.” The general principle of non-discrimination

[189]If the context of the claim before the court falls within the legislative competence of EU law, the general principle of non-discrimination will apply (see R (Chester) v Secretary of State for Justice

[2014] AC 271

per Lord Mance JSC at paragraph 61-62, Mangold v Helm (C-144/04) [2005] ECR I9991 para 75, Bartsch v Bosch und Siemens Hausgeräte (BSH) Altersfürsorge GmbH (

Case C-427/06

)

[2008] ECR I-7245

para 25, and Kücükdeveci para 23, Römer v Freie und Hansestadt Hamburg (Case C147/08)

[2011] ECR I-3591

para 60).

[190]In consequence, where there is “a conflict between EU law and English Domestic law [it] must be resolved in favour of the former, and the latter must be disapplied” (see Mangold at [77]; and see the comments of Sumption JSC in Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs

[2017] UKSC 62

[2018] IRLR 123

at 789E - 790A, approving Chester; Kucukdeveci at paragraphs 50 - 51; 53-54 and Romer at paragraph 61).

[191]The fact that a treaty or the Framework Directive contains specific provision preserving the discretion of Member States in relation to aspects of national law (see for example Article 17 TFEU and recital 22 of the Framework Directive) does not mean that a difference in treatment under the national legislation is excluded from the scope of the Framework directive, nor that the determination of whether such difference in treatment is compatible with that directive is not subject to effective judicial review (see Cresco at para 31).

[192]Where an article or recital to the Framework Directive establishes an exception to the principle prohibiting discrimination it must be interpreted strictly (see Prigge v Deutsche Lufthansa AG (C-447/09) EU:C:2011:573 at [56]). The Equality Act and the Equality and Human Right Commission Code of Practice on Employment.

[193]By the powers afforded to it by s.14 EQA 2010 the EHRC produced the Code. The Code was given force by the Equality Act 2010 Codes of Practice (Services, Public Functions and Associations, Employment, and Equal Pay) Order 2011 SI 2011/857 with effect from 6 April 2011. The Code has to be taken into account by the Tribunal where it appears relevant.

[194]The relevant paragraphs of the codes are as follows: What are arrangements? 10.8 Arrangements refer to the policies, criteria and practices used in the recruitment process including the decision-making process. ‘Arrangements’ for the purposes of the Act are not confined to those which an employer makes in deciding who should be offered a specific job. They also include arrangements for deciding who should be offered employment more generally. Arrangements include such things as advertisements for jobs, the application process and the interview stage. 16.43 Arrangements for deciding to whom to offer employment include shortlisting, selection tests, use of assessment centres and interviews. An employer must not discriminate in any of these arrangements and must make reasonable adjustments so that disabled people are not placed at a substantial disadvantage compared to non-disabled people (see Chapter 10). Basing selection decisions on stereotypical assumptions or prejudice is likely to amount to direct discrimination 16:47 addresses the desire for the same staff to conduct interviews where possible to ensure consistency 16.48 An employer should ensure that they do not put any applicant at a particular disadvantage in the arrangements they make for holding tests or interviews, or using assessment centres. For example, dates that coincide with religious festivals or tests that favour certain groups of applicants may lead to indirect discrimination, if they cannot be objectively justified. Discussion and conclusion

[195]The claimant argued before EJ Goraj that she was an applicant within the meaning of s.39(3) EQA 2010 because “the outcome of her complaint pursuant to the respondent’s complaints procedure was part of the arrangements which the respondent made for deciding to whom to offer employment” (see para 20 of the Judgment). The Judge accepted that argument.

[196]The Judge considered paragraph 10.8 above of the code, but none of the other jurisprudence detailed in this Judgment. She was not taken to it because, as Mr McCombie put it, this was an argument which was not advanced with any great force and amounted to more of an afterthought within the context of the applications that were listed for determination.

[197]The respondent argued that the complaints procedure did not fall within the meaning of the terms “arrangements” which the respondent made for deciding to whom to offer employment, because(a) the complaint did not relate to the decision not to appoint the claimant to either role for which she had applied and

(b) the decision was made prior to the complaint being issued and the arrangements were then at an end.

The Judge rejected that argument, relying upon paragraph 10.8 of the Code, observing:

[198]“(a) that it is clear that the word “arrangements” should be widely construed… that they include the interview stage (b) the claimant’s complaint relates to the alleged conduct by the respondent’s staff at such interviews… (c) (c) as a job applicant (rather than an employee) the only policy available to the claimant to allow her to pursue a complaint concerning the alleged conduct of the interviews in question was the respondent’s Complaints policy.”

[199]We take each point in term.

[200]The Judge’s observation that the word ‘arrangement’ should be widely construed was correct in so far as what was meant by that was that as the relevant statutory provision was one derived from EU law, the interpretative obligation to construe the national law so as to give effect to the purpose of the principle of non-discrimination applies. However, the purpose of the Framework Directive, which identified the possible discrimination in relation to recruitment, was “to ensure positive action to promote the employment and training of disabled people, with a particular focus on recruitment, retention, training and lifelong learning with regard to disabled persons.” That as the Code makes clear related specifically to the form of the interview, its timing, and the nature of the questions and assessment.

[201]The aim of taking positive action to ensure a level playing field was reflected in Article 3 which brought “conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions” into the scope of European Law. The focus and purpose of the legislation was particular, therefore, and related to preventing discrimination which might prevent disabled people from having a fair opportunity to secure employment. The reason for that policy was identified in preamble 9 to the Equal Treatment Directive: employment has a fundamental role in ensuring equal opportunities for all.

[202]The question of whether that purpose requires the phrase ‘arrangements made for deciding to whom to offer employment’ to be construed to include a grievance process is addressed below.

[203]Secondly, the judge was also correct to identify that the claimant’s complaint related to the alleged remarks of the respondent’s employees at the interviews. Discriminatory remarks in the course of an interview are actionable whether through s.39(1)(a) EQA 2010, or s.39(3) EQA 2010 if the protected act predated the comments (see Nagarajan v London Regional Transport,

[1999] ICR 877

, HL at 896 C-F).

[204]Lastly, the Judge was also right that the only policy available to complain about those remarks was the Complaint’s policy.

[205]However, the Judge appears to have conflated or confused two issues in reaching her conclusion. First, the nature of the interpretative obligation. That obligation: 205.1. Is limited to direct and indirect discrimination, which are prescribed in the Article 2 of the Equal Treatment Directive, 205.2. Applies where there is need to give effect to the policy aim of ensuring that people are not disadvantaged through discrimination in their attempts to secure employment, 205.3. does not extend to victimisation of an applicant, as(a) victimisation is within the competence of national law competence (albeit the national law giving effect to it should seek in so far as possible to give effect to the policy of the Directive) and

(b) the prohibition of victimisation in the Framework Directive is limited to victimisation of employees.

[206]The critical distinction between direct and indirect discrimination on the one hand and victimisation on the other, is that whereas for the former national law must be disapplied if it is incompatible with the EU law, for the latter national law must only be interpreted in so far as possible to give effect to the aims of the EU law and does not premit interpretations of UK statutes which lead to a distortion of their words (see Webb v Emo Air Cargo (UK) Ltd

[1992] 4 All ER 929

, HL). That position is to be contrasted with the approach to the interpretative obligation where the statute falls within an area of EU competence identified in Vodafone 2 v Revenue and Customs Comrs

[2009] EWCA Civ 446

at [37].

[207]There is no indication that the Judge was referred to the European jurisprudence which identified the distinction, or to Webb. She appears to have believed the interpretative obligation was that in Vodafone above.

[208]The second point where the Judge appears to have conflated issues is in her identification that the only means of complaint was through the respondent’s Complaints Procedure and the implied (but not expressed) concept of the need for National courts to provide an effective remedy for EU rights (identified in Recital 35 and considered in Marleasing). The claimant had an effective remedy in respect of the comments: ss. 13, alternatively s.26 and section 39(1) EQA 2010. That has no bearing on the proper construction of the phrase in section 39(3).

[209]That takes us to the critical issue: whether the phrase “the arrangements A makes for whom to offer employment” can reasonably be construed to include a decision not to offer a stage 2 review in respect of a complaints procedure where(a) the complaint does not relate to the decision not to offer the applicant employment,

(b) the complaint does not suggest that what occurred had any impact or influence upon either the applicant’s performance at interview or the decision of the panel that determined to whom employment should be offered.

[210]In that sense, this case is distinguishable from Brennan v J H Dewhurst Ltd

[1983] IRLR 357

[1984] ICR 52

; here there was no finding that the panel had a discriminatory mindset, and the complaint focuses not on the mindset of the panel but on the mindset of Mrs Shand who had no role whatsoever to play in the decision to offer employment.

[211]We accept that there is a factual link between the comments made in the interview, the complaint about those comments and the decision not to offer a stage 2 review in respect of that complaint. However, the link is not immediate, relies upon many links in a chain of causal connection, and is not one which relates to or relies upon a discriminatory mindset or policy.

[212]Weighing all those factors in the balance, we cannot see that the words in section 39(3) can be construed to include a decision not to offer a stage 2 review in a complaints procedure. Such an interpretation would be to torture the language of the statute beyond breaking point, in circumstances were there is no interpretative obligation which permits it.

[213]We therefore conclude that it would be in the interests of justice to reconsider the Judgment of EJ Goraj and to revoke it, substituting our decision that s.39(3) EQA 2010 cannot be construed to cover the facts of this case.

[1]In a letter dated 4 January 2023 attached to an email of the same date, the Claimant applied for an Order pursuant to Rule 50(3)(b) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”) that any information relating to a number of third parties in the Judgment and Reasons dated 3 February 2023 should be redacted.

[2]Specifically, the claimant sought redaction of any reference to the following corporate entities: AM Labels Ltd, Kettering; Solent Composite Systems Ltd; Southampton Hospital; Gurit UK Ltd; and BD Marine Ltd.

[3]Additionally, the claimant sought redaction of the circumstances in which she had reported to Hampshire Police her concerns that her brother was possibly missing.

[4]An usual feature of this application is that it was made before the claimant had received the written Reasons so as to assist her in identifying whether reference, if any, had in fact been made to those corporate entities, and if so what it was. The Grounds

[5]The grounds of the application are somewhat difficult to identify from the application itself. The claimant has referenced her right to private life enshrined in

Article 8 of the European Convention

of Human Rights (“ECHR”) and the Human Rights Act 1998, and the rights of freedom from torture or inhuman or degrading treatment (Article 3) and to a fair trial (Article 6).

[6]Doing the best we can, it appears that the claimant is concerned that reference to the corporate entities permits the reader to make inquiries which will reveal matters relating to her private and personal life. In the application she details what she says those are; it is unnecessary to rehearse them hear. The Judgment references

[7]The Judgment refers to each of the corporate entities as follows: 7.1. Gurit UK Ltd (“Gurit”) is referred to most extensively (paragraphs 60, 61, 63 and 89, 95 and 96). The references in paragraphs 60-63 detail the extent to which Gurit was referred to in the claimant’s interview and the content of a document the claimant sent to the respondent which she relied upon in relation to her victimisation claim. The references in paragraph 89 detailed what the claimant said had occurred when Gurit was discussed during the interview; paragraph 95 details what was said during the internal investigation by the respondent’s employees, and paragraph 96 details what PC Massey told Mrs Betts about the claimant’s allegations against Gurit in a Police Report. 7.2. The only reference to AM Labels Ltd is in paragraph 96, describing what PC Massey told Mrs Betts about that report. 7.3. Solent Composite Systems Ltd (“Solent”) is referred to in paragraph 1, describing in broad terms the nature of the allegations in the ET1; in paragraph 49 providing the context for those allegations when detailing the reference to Solent in the claimant’s interview; in paragraph 63 reporting the reference the claimant made to Solent in the document she sent to Miss Martin after her interview; and in paragraph 85 clarifying which Tribunal claim the claimant had referred to in her email of 9 July 2020. 7.4. There is a single reference to Southampton Hospital and BD Marine in paragraph 63, referencing the detail of the claimant’s complaint against the Hospital and how she sought to connect it to BD Marine in the document the claimant sent to Miss Martin. 7.5. Lastly the only reference to the claimant making a police report to her brother is in paragraph 96 in which we detailed what PC Massey told Mrs Betts about the claimant. The Claimant’s Arguments

[8]In her application the claimant suggests that the reports she made to the Police about her brother and Gurit were private matters (by implication falling within Article 8) and were not the subject of any Tribunal claim. Additionally, although the claimant does not identify it, we understand that the claimant says that the allegations she made against Gurit included allegations of sexual harassment, which would fall within Article 8.

[9]In so far as the claimant has identified anything that might fall within Article 6 and the right to a fair trial, it appears to be as follows: PC Massey wrongly and falsely described events when suggesting she made false reports to the Police, that she raised a complaint to the IOPC about that conduct and in consequence he is no longer a serving police officer (although we note that she does not say whether he was subject to disciplinary action which resulted in that outcome).

[10]We therefore understand the claimant’s argument to be developed in this way: 10.1. PS Massey’s account to Mrs Betts was false; 10.2. There was information within the bundle which showed that that was the case in the form of correspondence to the claimant from the IOPC; 10.3. That information was not referred to in the Judgment, despite the claimant’s request, after Judgment was handed down, that it should be; 10.4. Therefore, in order for there to be a fair trial the references to the corporate entities and the report the claimant made to the police should be redacted.

The Relevant Law

[11]It is a fundamental cornerstone of the common law that justice should be open (see Scott v Scott

[1913] AC 417

and Global Torch Ltd v Apex Global Management Ltd

[2013] 1 WLR 2993

). 12. ‘Open justice’ requires the public to be able to attend hearings and enables the press to report on proceedings contemporaneously, including the identities of the parties and witnesses. There have been many higher court iterations of the principle, one of the most seminal of which is that of R v Legal Aid Board (ex parte Kaim Todner)

[1999] QB 966

per Lord Woolf MR: “It is necessary because the public nature of the proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. If secrecy is restricted to those situations where justice would be frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of contempt having to be invoked, with the expense and the interference with the administration of justice which this can involve.”

[13]Those dual purposes were summarised by Lady Hale in in Cape Intermediate Holdings v Dring

[2019] UKSC 38

at paras 42-43, as follows: 13.1. ‘to enable public scrutiny of the way in which courts decide cases - to hold the judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly’; and 13.2. ‘to enable the public to understand how the justice system works and why decisions are taken’

[14]The reporting of judgment without restriction is part and parcel of the principle of open justice (BBC v Roden at para 50).

[15]However, the administration of justice is not merely subject to the common law but also to the Convention rights contained within the European Convention of Human Rights. The relevant rights which are engaged in the current case are as follows: Article 6, Article 8, and Article 10.

[16]Article 6 concerns the right to a fair hearing and provides: “In the determination of his civil rights and obligations…, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial Tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the public life parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

[17]Article 8 concerns the right to respect for private and family life. It is a qualified right which provides that everyone has the right to respect for their private and family life, their home and their correspondence. The right is qualified by the exception ‘except such as is in accordance with the law and is necessary in a democratic society… For the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights and freedom of others.’

[18]Article 10 provides for the freedom of expression and is the article prayed in aid by the broadcast media and written press. The right is qualified in the same manner as the Article 8 right.

[19]Those competing rights find their focus in the Tribunal process in the wording of Rule 50. That provides in so far as is relevant: “(1) A Tribunal may at any stage of the proceedings, on its own motion or on application, make an order with a view to preventing or restricting the public disclosure of any aspect of those proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person or in the circumstances identified in section 10A of the Employment Tribunals Act. (2) In considering whether to make an order under this rule, the Tribunal shall give full weight to the principle of open justice and to the Convention right to freedom of expression. (3) Such orders may include – (b) an order that the identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public, by the use of anonymisation or otherwise, whether in the course of any hearing or in its listing or in any documents entered on the Register or otherwise forming part of the public record; (d) a restricted reporting order within the terms of section 11 or 12 of the Employment Tribunals Act. (4) Any party, or other person with a legitimate interest, who has not had a reasonable opportunity to make representations before an order under this rule is made may apply to the Tribunal in writing for the order to be revoked or discharged, either on the basis of written representations or, if requested, at a hearing. (5) Where an order is made under paragraph 3 (d) above –(a) it shall specify the person whose identity is protected; and may specify particular matters of which publication is prohibited is likely to lead to that person’s identification;

(b) it shall specify the duration of the order;

(c) the Tribunal shall ensure that a notice of the fact that such an order has been made in relation to those proceedings is displayed on the noticeboard of the Tribunal with any list of the proceedings taking place before the Tribunal, and on the door of the room in which the proceedings affected by the order are taking place; and

(d) the Tribunal may order that it applies also to any other proceedings being heard as part of the same hearing. (6) ‘Convention rights’ has the meaning given to it in section 1 of the Human Rights Act 1998.”

[20]S.10A is ostensibly limited to cases of confidential information as defined in s.10A(1); that does not apply to the circumstances of this case.

[21]S.11 ETA 1996 relates to cases involving allegations of the commission of sexual offences and those involving allegations of sexual misconduct. Sexual harassment would fall within the definition of sexual misconduct in s.11(6) ETA 1996, as would the claimant’s allegations of sex discrimination. However the power provided by s.11 is to make a restricted reporting order which has effect “until the promulgation of Judgment.” It follows that the claimant cannot rely upon it in this application, as Judgment has been promulgated.

[22]It is now well recognised that a Restricted Reporting Order (“RRO”) can be made in a broad spectrum of cases even where sections 11 or 12 are not engaged (see Fallows v News Group Newspapers

[2016] ICR 801

and F v G

UKEAT/0042/11/DA

where Underhill P, reviewing X v Commissioner of Police for the Metropolis

[2003] ICR 1031

and A v B

[2010] ICR 849

, noted: “.. In a case where anonymisation or restricted reporting orders are sought in order to protect article 8 rights, which will in practice cover most cases caught by rules 49 and 50, the Tribunal’s powers do not have to be derived from those rules. On the contrary, it has wide powers to take appropriate steps, unconstrained by their specific terms.”

[23]However, just because a complaint of party falls into one of the categories does not mean that an order will be justified, even if both sides consent. The question is always whether the balance between the ss. 11 and 12 protection and the principle of open justice actually justifies the making of such an order (see X v Y

[1998] ICR 43

[24]The balancing exercise to be conducted in a case involving these conflicting rights was described by Lord Steyn in re S (A Child) (identification: Restrictions on Publication)

[2004] 3 WLR 1129

(at paragraph 17) as follows: “… What does, however, emerge clearly from the opinions are four propositions. First, neither article [8 and 10] has, as such, precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience, I will call this the ultimate balancing test. …”

[25]Generally, the issue may be straightforwardly determined without the need for a complex or lengthy hearing: “I should add that Lord Steyn’s reference to ‘an intense focus’ [in Campbell v MGN Ltd

[2004] AC 457

] does not mean that every time a litigant waves an article 8 flag in support of an application for a private hearing there will have to be a protracted and expensive hearing to determine the issue. Often, indeed usually, experience suggests that the application can be determined very quickly. It also shows that, in most cases falling outside the area of recognised exceptional circumstances …, the open justice principle will prevail.” Per Kay LJ in Global Torch, supra.

[26]In the context of sexual harassment or misconduct allegations the starting point is always that judgments should be published in full (including the names of the parties) with departure from that principle only where there is cogent justification and “the mere publication of embarrassing or damaging material is not a good reason for restricting the reporting of the judgment, as the authorities make clear” - see British Broadcasting Corporation v Roden

[2015] IRLR 627

, per Simler J at paragraph 50.

[27]The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence (see Global Torch per Maurice Kay LJ at paragraph 13).

[28]An order under Rule 50 interferes both with the principle of open justice and the right to freedom of expression. The principle of open justice was considered by the Supreme Court in A v British Broadcasting Corporation

[2014] 2 WLR 1243

in which Lord Reed said at [23]: “It is a general principle of our constitutional law that justice is administered by the courts in public, and is therefore open to public scrutiny. The principle is an aspect of the rule of law in a democracy. As Toulson LJ explained in R (Guardian News and Media Ltd) v City of Westminster Magistrates' Court (Article 19 intervening)

[2012] EWCA Civ 420

;

[2013] QB 618

, para 1, society depends on the courts to act as guardians of the rule of law. … In a democracy, where the exercise of public authority depends on the consent of the people governed, the answer must lie in the openness of the courts to public scrutiny.”

[29]However, a distinction may properly be drawn between a party who initiates the proceedings and is thus to be treated as having accepted the embarrassment and reputational damage involved in litigation and a witness who has no interest in the proceedings, who has a stronger claim to be protected by the courts if liable to be prejudiced by publicity (see R v Legal Aid Board, ex parte Todner at 978F) Discussions and Conclusion

[30]This is not a claim in which any concern about confidential information (within the definition in s.10A) and whilst the complaints of direct discrimination, in our judgment, fall within the definition of sexual misconduct in s.11(6) ETA 1996 because of the nature of the comments the claimant says were made, s.11 ETA 1996 affords the Tribunal no power to make an order redacting sections of the Judgment after its promulgation.

[31]In any event, the claimant does not seek redaction of her complaints or matters relating to them, she seeks redaction of the names of corporate identities which are not of direct relevance to those complaints. The right not to be subjected to torture or degrading treatment or punishment

[32]The claimant has not articulated any basis on which Article 3 would be engaged, let alone infringed, through the publication of the Judgment and Reasons without redaction. It appears that her complaint is the PC Massey subjected her to degrading treatment in the email he sent to Mrs Betts about her. That is not a matter which she can pray in aid in relation to the promulgation of the Judgment and Reasons. The right to a fair trial

[33]The claimant has not identified any basis on which that right to a fair trial has been infringed.

[34]In so far as we have recorded the content of PC Massey’s email to the respondent in the reasons, it was necessary to do so because it explained the conclusion reached by Mrs Betts, which was endorsed by Mrs Gaudion and considered by Mrs Shands. That was relevant to our conclusion in relation to the victimisation claim. It forms no part of our findings or our conclusions that PC Massey’s description of the mental state of the claimant or her mother, or of the truthful of any police report that they made, was itself accurate or true. That matter was irrelevant to our conclusions.

[35]Reporting the fact of PC’s Massey’s views without referencing documents which themselves were not referred to in evidence and which may have cast his views in a different light did not prevent the claimant from receiving a fair trial of her complaints of sex discrimination and victimisation, nor did it subject her to torture or degrading treatment.

[36]The argument that the claimant’s Article 3 or 6 rights were infringed in the hearing or would be infringed by the publication of the reasons is therefore misconceived. The right to a private and family life

[37]In so far as the claimant asserts that if the Judgment is published in full matters about her private and family life will be placed into the public domain, we make three observations.

[38]First, the claimant has already knowingly placed those matters in the public domain by making a Police complaint about them, writing to the respondent about them, and addressing them in her witness statement for these proceedings (see paragraphs 12, 15, 29 of the statement). That horse, if the metaphor may be excused, has already bolted. Secondly, the claimant chose to bring the claim and to place reliance on the matters that she now seeks to have redacted and removed from the public record. Lastly, the claimant was informed that one consequence of requesting written reasons would be that the Reasons, including the background facts, would be published to the Tribunal’s website. She requested written reasons in full knowledge of that fact. The balancing exercise

[39]We consider the factors to be weighed in conducting the necessary balancing exercise between the claimant’s Article 8 rights on the one hand and the principle of open justice and Article 10 on the other. We note first that the act of publishing the Judgment without redaction does not impinge upon the claimant’s right to a fair trial and does not constitute torture or degrading treatment. Secondly, in so far as there is any infringement of the claimant’s right to a private and family life it is minimal. Thirdly, the claimant chose to place matters about her private life into the public domain and must be taken to have accepted the normal impacts of the public nature of Tribunal proceedings. Fourthly, that the public airing of those matters may cause embarrassment to the claimant is not enough to justify a Rule 50 order (Global Torch).

[40]Weighing those factors, the only reasonable conclusion in this case is that the claimant has failed to demonstrate that a Rule 50 Order is necessary to protect her Convention rights or is otherwise in the interests of justice. The application is therefore refused.

Discussion and Conclusions

[1]The claimant has applied for a reconsideration of the Judgment dated 16 December 2022 which was sent to the parties the same day (“the Judgment”). The grounds of the application are contained in a letter attached to an email of 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. Grounds of the application

[3]The claimant further applied on 19 December 2022 for the Judgment to be “set aside”, resubmitting that application with amendments on 31 December 2022. The only provision with the Tribunal Rules to challenge a Judgment are the right to apply for reconsideration pursuant to Rule 70, and separately by appeal to the Employment Appeal Tribunal.

[4]In the event the grounds the claimant relies upon for setting aside the Judgment are that the Judgment was procured by fraud by the respondent. The claimant relies upon the same ground in her application for reconsideration. We have therefore reviewed the applications to set aside Judgment to identify arguments which may be relevant to the application for reconsideration.

[5]The permissible grounds for reconsideration are only those set out in Rule 70, namely that it is in the interests of justice to vary or revoke the Judgment. That a Judgment was procured by fraud could well have the effect that it would be in the interests of justice to vary or revoke it.

[6]The grounds identified in the claimant’s application may be summarised as follows:a. The Judgment was procured by a fraudulent representation made by the respondent that the claimant made false Police reports;

b. The Judge pretended not to have been referred to documents that showed that the representation was false and/or

c. The Judge refused to include in the Judgment references to the documents which showed that the representation was false;

d. The respondent did not include its complaints procedure within the bundle

e. The Tribunal’s conclusion on the issue of causation for victimisation was wrong;

f. The Tribunal’s decision upon reconsideration of the Judgment of EJ Goraj dated 4 January 2022 that the proper construction of s 39(3) EQA 2010 did not extend to a decision not to offer a stage 2 review under the respondent’s complaint’s was wrong as

(a) the Tribunal did not have the benefit of the complaints procedure,

(b) the Tribunal had failed to have regard to the need to construe the Equality Act in a manner compatible with the European Convention of Human Rights (“ECHR”)

g. The Tribunal erred in preferred the evidence of Mr Porter to the claimant’s evidence, notwithstanding Mr Porter did not give evidence or produce a statement;

h. The Tribunal erred and breached the claimant’s Article 6 right to a fair trial because it refused the claimant’s application to rely on social media posts. Conclusions Fraud (Grounds a – c)

[7]The basis of the fraud relied upon by the claimant is as follows: On the first day (12 December 2022), the Respondent’s legal counsel defended my application to include social media posts created by an employee of the Respondent. The Respondent’s legal counsel started his (the Respondent’s) argument with “The Claimant is known by Police to be a maker of false Police reports”[SIC}.

[8]The claimant argues that that statement was known by the respondent to be false as the claimant had not made unsubstantiated Police reports. The claimant must therefore show she has a reasonable prospect of establishing that the Tribunal made a finding that the claimant had made false Police reports and that that had a material influence on a conclusion that Tribunal reached in reaching its Judgment.

[9]In the claimant’s first application to set aside the Judgment she suggests that the Tribunal concluded that(a) she made false Police reports,

(b) the Police reports were unfounded and vexatious.

[10]A strange feature of this application is that it was made before the written reasons were provided to the claimant, in circumstances where the claimant was told that the written reasons take precedence over the oral reasons. Had the claimant waited for the written reasons, she would have had opportunity to consider them with care and time, as we encouraged her to do, and would have noted that we did not make the findings she suggests. For the avoidance of doubt, when handing down judgment verbally we did not make those findings either. As the Written Reasons show, we recorded as part of the background facts what the respondent had been told by PC Massey. Moreover, whether or not the claimant made false Police reports had no affect at all on our conclusion; it was a matter that was entirely irrelevant to our decisions.

The Relevant Law

[11]In so far as the claimant argues that the Judge pretended not to have been referred to documents which showed that the representation was false, she is mistaken. The claimant stated that there were such documents in the bundle, we were not referred to them in evidence or closing arguments, but in any event, they would have been irrelevant to our decision.

[12]After Judgment was handed down, the claimant raised that she wished the Judgment to reference certain documents to that end. The Judge explained to her that the Tribunal’s reasons were those that we had just handed down and the claimant could not seek, after the event, to alter what those reasons were or what should be referred to in them.

[13]This ground is misconceived in fact, and there is no reasonable prospect of our Judgment being varied or revoked on this basis. The respondent failed to include the complaints procedure within the bundle and the Tribunal’s decision to reconsider the Judgment of EJ Goraj and the conclusion reached was wrong (Grounds d and f)

[14]It is right that the complaint’s procedure was not included in the bundle. In relation to the claims before the Tribunal, the procedure was irrelevant because the respondent conceded(a) that the procedure permitted a stage 2 review and

(b) that the claimant had not been permitted that review. The issue for the Tribunal was why that decision was made. It is worthy of note that the claimant did not apply at any stage during the hearing to adduce procedure in evidence.

[15]There is no reasonable prospect of the Judgment being varied or revoked because it was not included.

[16]In so far as the claimant argues that the decision to reconsider the Judgment or EJ Goraj and the conclusion of that reconsideration was wrong because the Tribunal did not have the procedure before it, again it formed no part of the claimant’s submissions that it was necessary to see the procedure to decide whether to reconsider or to determine the outcome of that reconsideration. In any event, the procedure was largely if not entirely irrelevant to the issue we had to decide. The agreed facts were that the procedure did not permit the selection decision to be revisited, and that the claimant’s complaint did not request that it should. Critically, our task was one of statutory construction; our focus was on s.39(3) EQA 2010 and the jurisprudence, not the procedure itself.

[17]Secondly, addressing the alleged failure to construe that section in a matter that was compatible with the ECHR, we make two simple points. First that was not an argument which the claimant made before us: despite being invited to address the substantive issue of whether we should reconsider the Judgment and being invited to address the European Jurisprudence, the claimant did not do so, as detailed in the Reasons. Secondly, as the Reasons manifest clearly, we had extensive regard to the nature of the interpretative obligation. The claimant has not identified how we erred in our approach or how the ECHR would have altered the outcome.

[18]This ground is misconceived in fact and law and there is no reasonable prospect of the Judgment being varied or revoked on this basis. The Tribunal’s conclusion on the issue of causation for victimisation was wrong (Ground e) The Tribunal erred in preferred the evidence of Mr Porter to the claimant’s evidence, notwithstanding Mr Porter did not give evidence or produce a statement (Ground h) The Tribunal erred and breached the claimant’s Article 6 right to a fair trial because it refused the claimant’s application to rely on social media posts. (Ground i)

[19]We address these three allegations together, given they give rise to the same issue of law. All three matters were raised to a greater or lesser extent in the claimant’s arguments which were considered before handing down the Judgment. We say ‘arguments’; the claimant did not make any closing submissions, but we understood her case to be that the protected acts had caused Mrs Shand to refuse her a stage 2 review. The claimant did not, however, expressly argue or suggest to any witness that her evidence had to be preferred over that of Mr Porter, nor for the avoidance of doubt did she make any application for a witness order for Mr Porter. Nevertheless, we understood her case to be that we should accept her account of what had occurred, and where it differed from Mr Porter’s denial in the complaints investigation, to prefer it to his. We did not accept the claimant’s account for the reasons detailed in the Reasons.

[20]The claimant did apply to rely on the social media posts, and we rejected that application for the reasons given in the Reasons.

[21]These grounds of the application therefore entreat us to reconsider and review our decision on matters of fact or arguments which we have previously determined. 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”.

[22]There was no denial of natural justice in this case; rather we considered the evidence and the claimant’s arguments and determined that not only had she had not proved matters from which we could conclude that the burden of proof in relation to the allegations passed to the respondent, but further the respondent had shown Mr Porter had not acted as alleged and that Mrs Shand was not influenced by the protected Acts.

[23]Accordingly, we dismiss the application for reconsideration pursuant to Rule 72(1) because there is no reasonable prospect of the claimant demonstrating that it is in the interest of justice for the Judgment to be varied or revoked.