Mr K Manneh v UNISON and Aneurin Bevan University Health Board: 1602509/2024

EMPLOYMENT TRIBUNALS

Case No 1602509/2024

Between

Mr K MannehClaimant

UNISON and Aneurin Bevan University Health BoardRespondent

Before

Employment Judge R Evans

Date 22 April 2025

JUDGMENT

[1]On his application on 22 April 2025, the Claimant has permission to withdraw his complaint of direct discrimination as against the First Respondent arising from an email sent on 19 August 2020 (as set out at para 2.1 in the list of issues appended to the Case Management Order of 9 December 2024). The complaint is therefore dismissed.

[2]And upon hearing the First Respondent’s application of 16 January 2025, the Claimant’s complaints of direct discrimination and harassment against the First Respondent (as set out at paras 2.2 and 2.3 in the list of issues appended to the Case Management Order of 9 December 2024) are struck out in their entirety.

[3]The consequence of paras 1 and 2 above are to discharge the First Respondent as a party to the proceedings.

[4]The Claimant sought written reasons and they will follow at a later date.

REASONS

[1]These are my reasons at a Public Preliminary Hearing on 22 April 2025 in 1602509/2024 at which the Tribunal had to consider an application for strike out.

[2]By Form ET1 received on 1 July 2024, the Claimant, Mr Kebba Manneh, who lives in the Cwmbran area, brought various claims arising out of his employment with the Aneurin Bevan University Health Board and his role as a branch officer for UNISON. In particular, he initially pursued complaints of race discrimination, harassment, detriment and victimisation under the Equality Act (EA) 2010 as well as a complaint of whistleblowing.

[3]There are therefore two respondents. The first is UNISON and the second is Aneurin Bevan University Health Board. I shall refer to them as “UNISON” and “the Health Board” for brevity. The Claimant was not employed by UNISON.

[4]For completeness, I note that ACAS conciliation commenced on 17 May and a certificate was issued on 4 June 2024 as against UNISON. In respect of the Health Board, it was 9 and 13 June 2024. THE PROCEDURAL HISTORY

[5]On 7 November and 9 December 2024 Preliminary Hearings took place before Employment Judge Povey. He also had cause to issue case management directions inbetween those two Hearings.

[6]As I have alluded to, the procedural history thereafter was confusing and I was assisted by the chronology provided by Mr Brittenden KC.

[7]As I now understand the case to be, on 16 January 2025, UNISON made an application to strike out the Claimant’s complaints as they pertained to it.

[8]Accordingly, the matter is before me today for a Preliminary Hearing on strike out, it being UNISON’s application that the Claimant’s complaints against it are vexatious and absent any prospects of success.

[9]Mr Leonard Lennard appeared as a representative for the Claimant on a pro-bono basis. Mr Stuart Brittenden KC appeared for UNISON and Mr Owain Jones, Counsel, appeared for the Health Board. I am grateful to all representatives for their participation and the assistance they have afforded the Tribunal.

[10]The Claimant did not attend the Hearing, it being explained that he was absent from work with stress. Mr Lennard confirmed that he was instructed to proceed in his absence.

[11]I have been clear with the parties that I have read the pleadings and other case management documentation. It was their responsibility to take me to any supplemental documents. I should add that I have also read the written submissions sent to on Thursday on behalf of UNISON and the skeleton argument filed by the Claimant after 9:00am today. I have read those documents referred to within the written submissions and referred to during the course of the Hearing.

BACKGROUND

[12]In terms of the background, I will be necessarily focused.

[13]The Claimant is employed as a senior physiotherapy technician for the Health Board and has been in its employ since 1994. He is also a representative for UNISON’s Aneurin Bevan Health branch, which commenced in 2019. It has circa. 5,000 members. The Claimant was contracted to undertake 7.5 hours per week of branch work. This was pursuant to the trade union facilities/release arrangements agreed between the Branch and the Health Board which was in the bundle.

[14]As I understand it, he continues to hold roles within UNISON namely as the chair of Cymru UNISON Black Workers and nationally as chair of UNISON National Black Workers Committee. Those trade union activities did not fall within the remit of the trade union facilities/release arrangements agreed between the Branch and the Health Board. He was also an “ERA Accredited” representative for UNISON which indicated training pertaining to Employment Tribunal claims. That was in addition to a master’s degree in Employment Relationships from Keele University.

[15]I turn to the key events giving rise to the complaints up for discussion today. They are, in the main, largely evidenced by documents, such as emails and contracts. The key chronology, as I consider it to be, is as follows: August 2020 Emaila. In August 2020, the Claimant raised a complaint relating to racially aggravated assault upon a black nurse with the Health Board’s CEO, Judith Paget, and he raised an increase in instances of racism. It is understood that he sent an email to this effect on 19 August 2020. He copied in a number of UNISON colleagues for, “info” but it was not addressed to them. Judith Paget was said by the Claimant within his pleadings to have, “pushed back”, and he considered the Health Board complicit due to his whistleblowing of acts of racism.

b. Nothing came of that from UNISON’s perspective in the sense that it was never invited by the Claimant to respond or do anything in response to having been copied into the email to the Health Board. Loss of Facility Time and Subsequent Grievance

c. The Claimant had been, since 2019, allocated 7.5 hours of facility time for UNISON in the terms to which I have referred and that was agreed with the Health Board.

d. From July 2023 the Claimant was told his secondment was coming to an end with arrangements to be reviewed and individuals were to confirm if they wished to continue their corporate facility hours and were required to provide relevant evidence in support [p500 onwards bundle].

e. The Claimant sought a renewal and the review of his circumstances with evidence provided. It was only him and another up for review in terms of expiry of their secondments.

f. This generated a report from Andrea Prince, the new branch secretary. She had reviewed the Claimant and the other individual’s work over a 75-day period. That equated to 562.5 hours. She indicated that the Claimant’s branch work was of such low volume that his secondment could not be renewed. In short, it was said that his work amounted to nine telephone calls. This decision was then approved by the branch executive on 6 September and the Claimant was notified on 20 November 2023 [see p507]. It may be inferred that UNISON considered the Claimant to have misrepresented his activities.

g. On 22 November 2023 the Claimant was told that UNISON was willing to buy-out facility time for his national role.

h. The Claimant then sought to appeal the decision on 26 November 2023. That was despite seemingly him and the branch secretary knowing that no such appeal was possible. This was raised on 29 November 2023.

i. The Claimant set out his appeal on 3 December and was asked to provide evidence on 6 December 2023 with him told no appeal would take place. The Claimant says that he made a formal complaint to Jess Turner on or around 10 December 2023. It was alleged that he had been removed from his role and it had been given to a white male. UNISON said that it rejected his appeal on 11 December (with no evidence of the Claimant being treated differently) and on 12 December 2023 the Claimant was told he could lodge a complaint and this is how it was treated.

j. The Claimant’s grievance then took a number of months to progress, concluding finally on 16 September 2024. In short, it was not upheld.

[16]As alluded to, ACAS Early Conciliation against UNISON commenced on 17 May, ending on 4 June 2024.

[17]The Claimant initially raised complaints of discrimination on grounds of race, victimisation, detriment for making protected disclosures (‘whistleblowing’) and breaches of the Trade Union and Labour Relations (Consolidation) Act (TULCRA) 1992.

[18]There have been two Preliminary Hearings as well as a Case Management Order (CMO) generated of the Tribunal’s own volition in the pursuit of unmasking the precise nature of the Claimant’s complaints.

[19]The complaints relating to whistleblowing and TULCRA 1992 were withdrawn on 5 November 2024 and there was a judgment to that effect. It was denied before me that there had been a whistleblowing complaint. Visitation of the Form ET1 and the CMO was necessary to establish that.

[20]The list of issues was settled finally at the Hearing on 9 December 2024. The complaint of victimisation was withdrawn at that Hearing following inter partes correspondence and Tribunal case management in between. The list of issues are set out at pp105 to 106 of the bundle. They are not, for sake of brevity, repeated in full. In short form, they are as follows (and I have added context):a. UNISON had failed to address a grievance that he raised by email on 19 August 2020 to the Health Board about its conduct which copied a number of UNISON colleagues in, and this amounted to direct discrimination.

b. UNISON delayed, unreasonably, completing an investigation into his grievance raised in November 2023 and then did not complete it by June as indicated it would be in May 2024. Again, this amounted to direct discrimination.

c. The decision to remove 7.5 hours per week of facility time from the Claimant from 20 November 2023 amounted to direct discrimination.

d. The Health Board directly discriminated against him by pursuing an investigation into the allegations of fraud as against the Claimant.

e. The aforementioned complaints were pursued as complaints of harassment in the alternative.

[21]It is apparent that since the Preliminary Hearing on 9 December 2024 there continued to be inter partes conflict. In particular:a. On 1 April 2025 the Claimant’s representative wrote to the Tribunal and the other parties indicating that events going back to 2010, 2021 and 2022 were for context only.

b. The point was then repeated a short while later in a further email with it being said that period 2020, 2021 and 2022 did not, ‘… for the umpteenth time’ form part of the substantive claim. It was however somewhat contradictory in referencing the agreed list of issues from December 2024.

c. In response, the Claimant was invited by UNISON to withdraw the complaint concerning the 19 August 2020 email or at least amend it so that it did not relate to UNISON.

d. The Claimant then confirmed via his representative on 15 April 2025 that the 19 August 2020 email was not a complaint being pursued against UNISON – apparently this had been, ‘… plain and obvious’.

THE RELEVANT LAW

[22]I was referred to a significant amount of case law as well as the relevant procedure rules and as I have already set out, I am grateful to both Mr Brittenden and Mr Lennard for their efforts in identifying the key principles and authorities. The Overriding Objective

[23]Employment Tribunal Rules (ETR) 2024 (as amended) rule 3 provides (as Mr Lennard reminded me), ‘Overriding objective 3. The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal. ……’ Strike Out

[24]ETR 2024 rule 38 sets out, ‘Striking Out 38.—(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds—(a) that it is scandalous or vexatious or has no reasonable prospect of success;

(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;

(d) that it has not been actively pursued;

(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out). (2) A claim, response or reply may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.’

[25]The decision to strike out must be exercised in accordance with reason, relevance, principle and justice per Williams v. Real Care Agency Ltd 2012 ICR D27, EAT.

[26]Striking out a claim brought by a litigant in person is a draconian step and should be taken only in exceptional cases per Mbuisa v. Cygnet Healthcare Limited (

UKEAT/0119/18

). That decision also set out that whether the response is, ‘scandalous, vexatious or has no reasonable prospects of success’ is met by a very high bar, to be used, ‘where it is instantly demonstrable that the central facts in the claim are untrue or there is no real substance in the factual assertions being made.’

[27]ETR 2024 rule 38(2) provides that a claim or response (or part) cannot be struck out unless the party in question has been given a reasonable opportunity to make representations. This means that a Tribunal must give notice to the relevant party of its intention to strike out and invite that party to make representations. A party’s representations can be made either in writing or, if requested by the party, at a hearing. If a hearing is requested, it can be either a preliminary or a full hearing at which the parties may make oral representations and present evidence to be considered.

[28]Further, I note for completeness the decision in Drysdale v. Department of Transport (Maritime and Coastguard Agency) [2013] EWA 1083 which emphasises the need to provide such assistance to litigants as might be appropriate in the formulation and presentation of their cases which depended on the circumstances of each particular case. Whilst I recognise the Claimant to be assisted by Mr Lennard, I nonetheless consider it helpful to remind myself of the observations in Drysdale. The appropriate level of assistance or intervention was to be constrained by the overriding requirement that the Tribunal had at all times to be, and to be seen to be, impartial as between the parties, and that injustice to either side had to be avoided. The appropriate level of assistance or intervention was properly a matter for the judgment of the Tribunal hearing the case, and the creation of rigid obligations or rules of law was to be avoided, as much would depend on the tribunal’s assessment and “feel” for what was fair in all the circumstances of the specific case. There is, as Drysdale makes clear, a wide margin of appreciation available to a Tribunal in assessing such matters. Strike Out – Scandalous, Vexatious or No Prospects of Success

[29]My attention has been drawn to the decision in Ezsias v. North Glamorgan NHS Trust

[2007] EWCA Civ 330

in which the Court of Appeal considered the principles to apply in striking out when there was a core of disputed facts. At §29 Kay LJ set out, ‘It would only be in an exceptional case that an application to an employment tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute.’

[30]In QDOS Consulting Limited and others v. Swanson

UKEAT/0495/11

(12/4/12), His Honour Judge Serota QC warned against the ‘deceptively attractive shortcuts’ of strike out applications. It was said, at §49, ‘Applications to strike out on the basis that there is no reasonable prospect of success should only be made in the most obvious and plain cases in which there is no factual dispute … Applications that involve prolonged or extensive study of documents and the assessment of disputed evidence that may depend on the credibility of the witnesses should not be brought... but must be determined at a full hearing. Applications... that involve issues of discrimination must be approached with particular caution. In cases where there are real factual disputes the parties should prepare for a full hearing rather than dissipate their energy and resources, and those, of Employment Tribunals, on deceptively attractive shortcuts.’

[31]Further, in Hasan v. Tesco Stores Ltd

UKEAT/0098/16

(22/6/16) it was observed that it was not appropriate to debate the written pleadings.

[32]A helpful summary is found within the decision of the EAT in Cox v. Adecco Group UK & Ireland and Ors

2021 ICR 1307

EAT. Within His Honour Judge Tayler’s judgment it was set out that (in the context of strike out applications against litigants in person),a. if the question of prospects turns on a factual issue then strike out is unlikely to be appropriate;

b. there has to be a reasonable attempt at identifying the claim first – you have to know what it is;

c. a fair assessment of the claims and issues should be carried out on the basis of the pleadings and any other documents in which the claimant seeks to set out the claim;

d. the pleadings and any key documents need to be read in addition to simply requiring a claimant to set out their case, which can be very challenging for them;

e. a careful reading of documents may show there to be a claim even if amendment was required;

f. it is not an escape valve for the Tribunal rolling its sleeves up and identifying the claims and issues;

g. respondents must not procedurally take advantage of litigants in person and should assist the Tribunal with identifying key documents and the like;

h. amendment should be considered if prospects would be created by proper pleadings;

i. claimants have a responsibility to explain their claims clearly and the more prolix and convoluted, the less the criticism of the Tribunal; and

j. the Tribunal can only be expected to take reasonable steps to identify the claims and issues. Strike Out in Discrimination Cases

[33]It was highlighted that it was very much in the public interest for discrimination cases to be adjudicated upon after a full hearing of the facts per the House of Lords decision in Anyanwu v. South Bank Student Union

[2001] ICR 391

HL (at §37). However, Lord Hope identified that the time and resources of the employment tribunals ought not to be taken up by having to hear evidence in cases that are bound to fail (at §39).

[34]I was referred to the observations of Langstaff J in Chandhok v. Tirkey [2015] IC5 527, in which he set out (at §20), ‘This stops short of a blanket ban on strike-out applications succeeding in discrimination claims. There may still be occasions when a claim can properly be struck out – where, for instance, … on the case as pleaded, there is really no more than an assertion of a difference of treatment and a difference of protected characteristic which (per Mummery LJ at paragraph 56 of his judgment in Madarassy v Nomura International plc

[2007] IRLR 246

CA) …’

[35]There is authority for saying that only the ‘clearest case’ should a complaint of discrimination be struck out and matters turning on oral evidence should be heard with a claimant’s evidence taken at its highest with only those conclusively disproved by or inexplicably inconsistent with undisputed contemporaneous documents may be struck out – Mechkarov v. Citibank NA

[2016] ICR 1121

. The Tribunal ought not complete a mini trial. That approach appears to have been consistent with the Court of Appeal’s decision in Ezias. I am not, however, bound to accept without analysis everything said by a party within statements and in some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporary documents and it may be that earlier disposal is possible, see E D & F Man Liquid Products Ltd v. Patel

[2003] EWCA Civ 472

[36]Further, the Tribunal ought not allow a case to proceed on the basis that, “something may turn up”, per Mitting J in Patel v. Lloyds Pharmacy

UKEAT/0418/12/ZT

. I have also been referred to the key observations in Ahir v. British Airways PLC [2017] EWCA Civ1392 (see §15 onwards). Essentially, strike out can and should occur, even where there is a dispute of fact, where there is no reasonable prospect of establishing the facts going to liability. It is an exercise of judgment.

[37]I have also been directed to the section 136 EqA 2010 burden of proof, which in the context of an application for strike out of a discrimination complaint, requires visitation.

[38]Section 136 EA 2010 provides for the operation of the burden of proof in discrimination claims. Guidelines were set out by the Court of Appeal in Igen Ltd v. Wong

[2005] EWCA Civ 142

. There are, essentially, two stages and it is helpful to bear the following in mind: a. At the first stage, there must be primary facts from which the tribunal could decide – in the absence of any other explanation, that discrimination took place. The burden of proof is on the claimant. This is sometimes referred to as proving a prima facie case. If this happens, the burden of proof shifts to the respondent. Further, i. It is only necessary that a tribunal could find discrimination – not that it would definitely find discrimination. ii. This means ‘a reasonable tribunal could properly conclude’ on the balance of probabilities that there was discrimination (Madarassy v. Nomura International Plc

[2007] IRLR 246

, CA). iii. It is often useful to imagine ‘if these things had happened and there was no explanation for them, could we find discrimination?’ iv. The tribunal should take into account all facts and evidence available to it at stage one, not only those which the claimant has adduced/proved. v. If there are disputed facts, the burden of proof is on the claimant to prove those facts. vi. the tribunal can take into account the respondent’s arguments.

[39]I am reminded that the burden of proof does not shift simply on a claimant establishing a difference in status (i.e. race) and a difference in treatment (which it is denied C has established). Those bare facts only indicate a possibility of discrimination but rather, something more is required upon which a Tribunal “could conclude” discrimination from. A material difference such as race or disability is not sufficient nor is a difference in treatment. As was set out by Mummery LJ in Madarassy, ‘… 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 unlawful act of discrimination.’

[40]Further, I have been reminded of section 123 EqA 2010 and its component parts.

[41]I remind myself that:a. it is not always clear precisely when a discriminatory action took place;

b. the time runs from the discriminatory action, not from the protected act;

c. if the claim is late, the tribunal has a ‘just and equitable’ discretion pursuant to section 123(1)(b) EA 2010 (this being a wide discretion where the Tribunal balances the prejudice between the parties); and

d. where more than one discriminatory action is claimed, the three-month time-limit attaches to each action and section 123(3) EA 2010 provides that it is the end of the period of any conduct with which I am concerned.

[42]In deciding whether it would be just and equitable to extend the time limit the Tribunal will have regard to a mosaic of issues including the reasons for the delay, the actions of the parties and any prejudice which would be caused to the parties by the tribunal’s decision about extending time.

[43]It is essential to pinpoint the date on which the act of discrimination takes place which can be very difficult. It is also wrong for a Tribunal to strike out a claim on the basis that it is time barred where it is unable to properly establish the date of the discriminatory act and in particular, whether the act is part of a continuing act or continuing state of affairs in the absence of evidence from the parties which would have to be presented at a full Hearing, Kaur v. Edinborough Council

2013 CSIH 32

, Ct Sess (Inner House) applied. The Claimant in that case needed only to have shown, prima facie, that the claim was presented in time. There is Court of Appeal authority in support of this.

[44]The Court of Appeal determined in Hendricks v. Commissioner of Police for the Metropolis

[2003] IRLR 96

that, ‘an act extending over a period…’, can comprise a, ‘… continuing state of affairs’, as opposed to a succession of isolated or unconnected acts. There does however need to be a link or connection between the actions.

[45]In cases where discriminatory conduct has occurred over a period of time, the time limit commences from the end of the alleged discriminatory conduct (section 123(3)(a) EA 2010 applied). In short, the authorities provide a generous interpretation. As such, continuing acts may be where an employer is responsible for an ongoing situation or a continuing discriminatory state of affairs in which linked acts of discrimination extending over a period of time occurred or where there is a repeated refusal by an employer to do something over a period of time.

[46]I also note the decision in Robertson v. Bexley CC

[2003] IRLR 434

and that time limits are exercised strictly and it is for an applicant to convince the Tribunal that it is just an equitable to extend.

[47]It occurs to me that I should also have regard to rule 3 Employment Tribunal Rules (ETR) 2024 and the overriding objective when looking at this issue too. Deposit Orders

[48]Mr Lennard provided helpful written submissions as to the law on Deposit Orders and Mr Brittenden KC took no issue with the same.

[49]The distinction between a deposit order and striking out was highlighted in HM Prison Service v. Dolby

[2003] IRLR 694

, in which the “Yellow Card”/ “Red card” analogy emerged.

[50]In Hemdan v. Ishmail and another

[2017] IRLR 228

, 230, Simler J set out, ‘It is a power to be exercised in accordance with the overriding objective, having regard to all of the circumstances of the particular case. That means that regard should be had for example, to the need for case management and for parties to focus on the real issues in the case. The extent to which costs are likely to be saved, and the case is likely to be allocated a fair share of limited tribunal resources, are also relevant factors. It may also be relevant in a particular case to consider the importance of the case in the context of the wider public interest.’

[51]In Tree v. South East Coastal Services Ambulance NHS Trust UKEAT/00431/17 (4/7/17), Her Honour Judge Eady QC accepted that Deposit Orders were not to be used as an alternative to CMOs which were the proper means of clarifying an unclear case. It ws set out (at §39), ‘I do not consider that a Deposit Order process is to be used as a shortcut substitute for case management Orders more appropriate in such circumstances (such as the ordering of further Particulars, or requiring a party to formally amend the claim, or using Unless Orders if need be).’ SUBMISSIONS

[52]As alluded to, I have been assisted by written documents and oral submissions.

[53]In his submissions, Mr Brittenden KC addressed all of the matters identified as the Claimant’s complaints. He reminded me of the authorities to which I have referred.

[54]As regards his position on the 19 August 2020 email, this was rather resolved by Mr Lennard’s application to withdraw the complaint as against UNISON and refocus it upon the Health Board, something I will come to at the end of my Reasons in dealing with that application. It was nonetheless highlighted that Mr Lennard had more recently indicated that events in 2020 did not form part of the basis for the substantive claim or form part of the continuing act.

[55]As regards to the reduction of the 7.5 hours and the delay in the investigation arising from the grievance in December 2023, Mr Brittenden KC provided me with a lengthy chronology and analysis of the events leading up to the Claimant’s grievance. In particular, he pointed to the absence of evidence at the time of any different treatment, the Claimant being unable or unwilling to evidence any work he had done and indeed any contraction to Andrea Prince’s report as to his work done. His position was that there was a documented, “reason why” a decision was taken not to renew the 7.5 hours of facility time and then the Claimant did not engage at the altar of hoping something might turn up at a later stage. The litigation conduct in respect of the August 2020 email was pointed to in terms of the Claimant’s engagement. He had, it was said, at no time, provided any evidence of the branch work undertaken with nothing to gainsay the review. No complaint was made as to the outcome of the grievance, it was simply the delay. There was no prima facie case to the delay complaint and rather the snap general election was pointed to along with the Claimant’s conduct in delaying the investigation and his attempt to widen the ambit of the complaint. The chronology accounting for the delay was set out within Mr Brittenden KC’s skeleton argument.

[56]I probed him as to what the significant factual disputes were as asserted by Mr Lennard in his document and in short he said there were none. There was no document from the Claimant casting doubt upon Andrea Prince’s investigation and it was described as a, “bare assertion.” I was reminded that the Claimant had been asked on three occasions for his evidence at the end of 2023 and there had been the further disclosure requirements provided for by these proceedings. Nothing had been forthcoming.

[57]It was also said on UNISON’s behalf that the complaint arising from the removal of the 7.5 hours was out of time – it was only in the event that the complaint as to delay was struck out that an argument as to time limits would emerge because, and for the reasons set out early on in Mr Brittenden KC’s skeleton argument, there was no adequate basis for extending time limits on the former.

[58]Mr James and Mr Lennard sought to tackle the issue of amendment and I deal with that at the end of these Reasons. Mr James was otherwise sought to support the submissions on behalf of UNISON.

[59]From the Claimant I had a very helpful skeleton argument prepared by Mr Lennard. It was suggested that the CMO from December 2024 inaccurately attributed the complaint relating to the 19 August 2020 correspondence to UNISON rather than the Health Board. It is described as, ‘slightly wrong’, in that regard and Mr Lennard invited me to substitute the identity of the relevant Respondent. It was explained by Mr Lennard that whether matters amount to continuing acts will be a matter for trial. The reasons for the delay in respect of the grievance investigation were described, in writing, as being, ‘diametrically in dispute.’ He emphasised the evidence had not been heard and to determine it on the papers would be wholly inappropriate, that also being in the context of 11 witnesses waiting to be heard at trial. It was emphasised that there was a wider public interest pertaining to the 19 August 2020 correspondence and I was encouraged to also resist from making a Deposit Order.

[60]In his oral submissions, Mr Lennard reminded me of the salient authorities and impressed upon me the connotations of the imperative attached to dealing with cases justly and fairly. There was no basis for striking out the Claimant’s case and the facts were described as, “hotly disputed”. Whether there were continuing acts was a matter for trial and evidence and it was impressed upon me that there were issues to be tried and that I should not fall into the error of determining issues which are hotly contested. The Tribunal, he said, should avoid any short cuts and it was said that the Claimant, a magistrate of 22 years, wished to be heard and he had every right to be. The hearing of oral evidence was essential I was told. In terms of the facts in dispute, Mr Lennard said that the removal of the 7.5 hours in November 2023 was a continuing act of discrimination. He took me to various documents which he said suggested that the Claimant’s trade union duties at large could be met within the 7.5 hours (see pp649 and 1077). It was then said that the initial decision to only award the Claimant 7.5 not 37.5 hours in or around March 2019 was a discriminatory act, with it being acknowledged that no such complaint was made in 2019 despite the Claimant knowing of Stefan Senese’s circumstances by the middle of the year, the Claimant having given that information to Mr Lennard by text during the Hearing. I was told that the complaints indicated systemic discrimination by UNISON and needed to be fully addressed and attended to. It was repeated that it was not a simple case, the circumstances were not plain and obvious and required careful scrutiny with cross-examination and re-examination of all witnesses.

CONCLUSIONS

[61]I turn to my analysis and conclusions.

[62]I make it clear that the function of the Tribunal has not been to undertake a so-called “mini trial” but nonetheless, I have to provide my analysis and justification for the judgments at which I arrive at.

[63]It is apparent to me that there has already been considerable effort by the Tribunal and the parties to clarify the complaints before it. That is well-documented.

[64]Following the inception of the claim, the complaints of detriment for making protected disclosures, those relating to TULCRA 1992 and victimisation were withdrawn over the course of two Hearings in November and December 2024. It does not follow that just because the Claimant was wrong about A that it follows that he is wrong about B, far from it. It does, nonetheless, capture, in miniature, the rather unfocused nature of the Claimant’s case.

[65]I am also cautious, or conscious, that, if I am wrong to categorise the Claimant as a litigant in person, he would be at a level just above that. His representative, Mr Leonard, has done his best to assist the Tribunal. However, the state of the pleadings and the confusion that shrouded his case in November and December 2024 and up until today are indicative of a chaotic and, at times, incoherent case as it relates to UNISON. I am also mindful that the Claimant is someone who has, by virtue of his role, his education and his experience, some solid knowledge of the Tribunal and its functions.

[66]Further, simply because UNISON’s position is somewhat more straightforward and arguably more attractive does not mean that it should succeed or that it should offer an easy way out as it were – the case has a listing for a DRA and Final Hearing and there is a timetable in place. Of course, on the other hand, that is also not determinative and I have the overriding objective and its component parts writ large in my mind as Mr Lennard in effect urged me to do, albeit from a different perspective.

[67]I was mindful that whilst there was repeated reference to significant factual dispute, it was not apparent. For obvious reasons, Mr Lennard was pushed and pushed on this point – I had, as it were, sought to roll my sleeves up and understand what these were. By the end, I had not heard any cogent significant factual disputes germane to the issues. August 2020 Email

[68]Whilst it does not fall to me to consider striking out of the complaint pertaining to the 19 August 2020 email, it is a helpful place to start in my analysis.

[69]The Particulars of Claim were considered during the course of the Hearing because Mr Lennard’s case today, per his skeleton argument filed after 9:00am this morning, was that it was an obvious error, and the respective Respondents should simply be switched. The pleadings (see in particular from §23 onwards) did not make it apparent that it was simply a typographical error in attributing discriminatory conduct to UNISON arising from that email. If it were, unfortunately, the issue gained further life in the first and second Preliminary Hearings at which both the draft and final list of issues identified that as being a complaint against UNISON.

[70]I cannot, at this time, understand what has gone on. Mr Brittenden KC, who participated at the last Hearing confirmed that he understood the allegation to be UNISON’s to answer. The Health Board has not provided for witnesses on the issue of that email thinking it was not pleaded against it and UNISON have responded to it and sought to have it struck out. The email communications between January and April 2025 are confusing and I do not understand why it was not withdrawn sooner, the issue having emerged by 16 January 2025 at the latest when the strike out application was made. Nowhere in the bundle was there otherwise an indication that the complaint was in fact against the Health Board and any criticism of UNISON’s response to that was not well founded in my judgment. All that I have read led me to understand it to be their case to answer.

[71]I give the Claimant permission to withdraw the complaint relating to the 19 August 2020 email as against UNISON. It is therefore dismissed.

[72]Had the complaint not been withdrawn, it would have been struck out for want of any prospects of success. Removal of the 7.5 Hours

[73]I therefore turn to the matters really in issue and start, chronologically with the decision to remove 7.5 hours per week of facility time from the Claimant from 20 November 2023.

[74]It is obvious from the contemporaneous documentary evidence that the allocated time tenders were up for review. Andrea Prince identified it and raised it with a number of individuals. Indeed, for one woman, she erroneously did so and corrected herself. For the Claimant, there is no such suggestion and on or around 17 July 2023 he expressed his desire to renew his allocation by email. There then involved a review process and Andrea Prince produced her investigation to which I have already referred. It is now seemingly said that the original decision to award 7.5 rather than 37.5 hours was discriminatory and this was seemingly part of a chain of events. That has no origins in the evidence – the Claimant did not complain in 2019, he knew of Stefan Senese’s circumstances’ that year and the communication I have seen around the time is cordial. There have been two Preliminary Hearings and the Claimant’s case was not put like that at either Hearing it would seem. Mr Lennard has, at times, referred to it as background information but similarly I have not been taken to anything that would support that.

[75]Andrea Prince provided a comprehensive set of reasons following investigation which on the face of it would more than adequately remove the allocation of the Claimant’s hours. It was suggested by Mr Lennard, in submissions when pushed as to the significant factual disputes, that there was dispute as to the nature of the work that may be undertaken by the Claimant during the 7.5 hours. Again, the documentary evidence indicated to the contrary (see pp113 and 240 which made that clear, as did p1077). There were emails requesting protected time for the Claimant’s non-branch union work and these indicate the Claimant’s understanding between the distinct roles.

[76]The Claimant had been asked three times to produce written evidence (per Mr Brittenden KC’s skeleton argument) and there were the disclosure requirements within these proceedings. There is nothing to cast doubt upon the decision making of UNISON or indeed the enquiries made by Andrea Prince. It would be to put the cart before the horse and despite very lengthy submissions, I was unable to ascertain any meaningful factual dispute that existed having explored those identified as such by Mr Lennard and even if I were wrong, taken at their highest they are not of the material kind so as to discharge the relevant burden of proof.

[77]It is not clear to me that there are significant factual disputes. The documentary evidence does not lend itself to that. Mr Lennard has valiantly sought to put the Claimant’s case and I have spent time looking at the documents to which he has taken me and I have repeatedly sought to understand his assertions. I have done so because I have sought to be extremely cautious in approaching an application to strike out a complaint of discrimination at which a respondent starts at the bottom of a very steep hill, if not mountain. However, the contemporaneous documentation is utterly unambiguous. No slight is made of Andrea Prince’s investigation and outcome. To borrow Mr Brittenden KC’s comments, I remain unclear what facts are in dispute beyond the ascribed motivation. Delay in Investigating

[78]I now turn to the complaint that the Claimant’s grievance was delayed to an unreasonable degree.

[79]It is irresistible, on the contemporaneous documents before me to conclude that there was multi-faceted cause for the delay to the investigation. It included,a. delays in interviewing the Claimant who was asked for dates in January who offered dates in February 2024 after 6:30pm explaining his diary got full quickly;

b. a delay of 11 days in the Claimant even offering the February 2024 dates;

c. the Claimant postponing a 7 February 2024 meeting the day before due to unavailability of his representative;

d. a delay between 6 and 28 February 2024 in the Claimant providing alternative dates (he having been chased on 27 February 2024);

e. the Claimant providing dates in March 2024 before resiling due to his participation in Ramadan, a UNISON inquiry and representative availability;

f. the Claimant indicating that a Friday evening may be best;

g. new dates not being proffered by the Claimant until 24 March 2024;

h. the expansion of the Claimant’s complaint on 17 April 2024 leading to time being necessary to undertake further investigation;

i. Andrea Prince was then not interviewed until 24 June 2024;

j. there was delay occasioned by the Health Board’s fraud investigation;

k. the Claimant was asked for information arising from the fraud investigation on 2 May which he responded to on 14 May 2024 indicating his solicitor would be in touch;

l. the snap election caused delay generally for UNISON; and

m. the investigating officer was involved in other UNISON activity including the national conference for a week (June 2024), training for a week (August 2024) and she had annual leave (from 19 August to 2 September 2024).

[80]The documentary evidence is clear. In short, there was a delay between Christmas and early January 2024. The Claimant then was then the principal cause of the delay until around 17 April 2024 – some three months. It is not as arbitrary a process as simply deducting three months from September and getting June 2024 but it does capture, in miniature, the impact of the Claimant’s own actions. The complications occasioned from the fraud investigation cannot be laid at UNISON’s door and there were then more atypical delays that one may reasonably expect to see.

[81]Taking all of those factors into account, it is reasonable to conclude that the Claimant’s conduct in large part contributed to the delay. There is absolutely nothing that I can infer from that set of facts, let alone possibly or properly, that could cause me to conclude that the delay was motivated by discrimination. On the documents, it obviously was not and the reasons for the delay are varied and wide-ranging. Much of it is caused or otherwise contributed to by the Claimant.

[82]I take the Claimant’s case at its highest in that he says that this was a continued state of affairs emanating from the discriminatory conduct that took place in 2023 in removing his 7.5 hours from him. That is, in my judgment, a bare assertion which is not supported by the documentary evidence to which I have been directed. Removal of the 7.5 Hours – Time Limits

[83]In the event that I was wrong to strike out the complaint relating to the removal of the 7.5 hours, I would nonetheless consider that the Claimant’s case should be struck out for want of jurisdiction on the basis of it being out of time. In particular:a. the Claimant was ERA accredited representative for a union;

b. he had received training from UNISON relating to Employment Tribunal claims;

c. he has some experience of the Tribunal;

d. he holds a masters degree in Employment Relationships from Keele University; and

e. there is an email from Mr Lennard recognising the Claimant’s familiarity with the statutory time limits.

[84]There was no explanation given as to why the complaint was not made in time and in that knowledge and knowing the nature of the Claimant’s complaint, I cannot see how it would be just and equitable to extend the time limits for such a complaint, the Claimant having provided no proper or convincing reason to justify such an extension. Summary

[85]Despite Mr Lennard’s thorough submissions, I am driven to the conclusion that this is one of those so-called clear cases. Assertion, no matter how serious, is not enough to carry it to trial and the matters to which I have been taken in writing and orally do not dissipate that conclusion.

[86]That 10 days is already listed and that witnesses are envisaged to give evidence is no more an escape valve for the Tribunal than the so-called short cut of striking a claim out. Indeed, it emphasises the imperative need to ensure that Tribunal time is used efficiently and effectively. To allow the complaints against UNISON to run to trial would be outwith the overriding objective and its component parts. To allow it would be on the basis of hoping something will “show up” – I have to make decisions with the overriding objective in mind and I cannot ignore the inescapable reality at the altar of convenience. I have to do justice to both parties,

[87]For the aforementioned reasons I will strike out the Claimant’s complaints as they relate to UNISON only.

[88]The Claimant’s case against the Health Board will now proceed to trial. AMENDMENT

[89]Finally, I turn to the issue of amendment.

[90]The law is helpfully summarised in Vaughan v. Modality

UKEAT/0147/20/BA

and in particular:a. The tribunal has a wide discretion when it comes to case management, including applications to amend;

b. case management decisions will often be brief and the EAT must avoid an excessively minute analysis of them;

c. if an employment judge has, on a fair reading of the judgment, failed to take account of a relevant matter or failed properly to apply the law, it is necessary to interfere;

d. the principles in Selkent are not a checklist to be ticked off to determine an application to amend. They are factors to be taken into account in conducting the fundamental exercise of balancing the injustice or hardship of allowing the amendment against the injustice and hardship of refusing it;

e. representatives should start by considering what the real, practical consequences of allowing or refusing the amendment will be. An employment judge may need to adopt a more inquisitorial approach when dealing with a litigant in person;

f. where the prejudice of allowing an amendment is additional expense, consideration should be given as to whether the prejudice can be ameliorated by an award of costs, provided that the other party can meet it; and

g. an amendment that would have been avoided had more care been taken with the pleadings is an annoyance and takes up limited tribunal time and cost. However, while these are relevant considerations, the key factor remains the balance of justice.

[91]In fairness to Mr James, he was dealing with an application made via a skeleton argument today. He told me that the application to amend amounted to more than a typographical error and was not trivial. He said it should be refused or be required to be set out in writing to the Tribunal. He pointed to the varied deployment of the set of facts by the Claimant in it being utilised as background information and a complaint. There was also the practical consequences of the Health Board obtaining a statement from a witness who had left its employ (whereabouts were known).

[92]Mr Lennard indicated that the position had been obvious from the outset and for reasons that I have already given, I cannot agree that interpretation. He had sought to suggest that the list of issues being wrong was typographical and minor in nature. That, in principle, I would be able to agree but the pleadings were also either incorrect or did not reflect the reality of that which was now pursued. The position, factually at least, has however been known to the parties for some time and there is real force to his application to amend in that regard.

[93]Given the belated nature of the application, the confusion from which it emerged and the potential for it to have had its origins in an early error within the pleadings perpetuated by further case management, I am going to require a written application to be made so that Mr Lennard can set out what has happened and then the Health Board can take a view. The matter, subject to any further submissions, could I hope, be then dealt with administratively. It will be of course be open to a Judge considering the application to list a Hearing in the event that he or she considered it was necessary. Approved by

CONCLUSIONS

[1]the Claimant’s claim for harassment relating to race is not well founded and is dismissed;

[2]the Claimant’s claim of direct race harassment is not well founded and is dismissed;

[3]the Respondent’s application for a costs order under Rule 74(2) (a) and (b) of the Employment Tribunal Rules of Procedure is successful. The Claimant is ordered to pay to the Respondent the sum of £15,000 by consent. Case Number: 1602509/2024 Approved by