Mr M Dolphin v The Brunswick Centre: 1802391/2018 and others
JUDGMENT
[1]The complaint that the Claimant was subjected to detriments on the grounds that he made a protected disclosure, fails and is dismissed.[2]The complaint that the Claimant was unfairly constructively dismissed for making a protected disclosure, fails and is dismissed.[3]The complaint withdrew allegation (10) an alleged detriment, on the 3rd July 2019 and that part of the claim is dismissed upon withdrawal.[4]The Claimant is ordered to pay costs in the sum of £1, 000 to the Respondent, pursuant to Rule 76 and 39 (5) of the Employment Tribunals Rules of Procedure.[1]The following claims are dismissed on withdrawal by the Claimant:1.1 the allegations of unfair dismissal for trade union reasons in Claim no. 1802149/2017 and 1802392/20181.2 any allegations of detriment on trade union grounds in Claim nos. 1802149/2017 and 1802390/20181.3 any allegation of sexual orientation discrimination in Claim no. 1801044/20141.4 any allegation of public interest disclosure detriment during employment in Claim nos. 1802149/2017 and 1802390/20181.5 any allegations of unfair dismissal for public interest disclosure detriment during employment in Claim nos. 1802149/2017, 1802390/2018 and 1802392/2018[2]The allegations of post-employment public interest disclosure detriments in Claim nos. 1802149/2017 and 1802390/2018 are dismissed as having been presented out of time.[3]The allegations of breach of contract in Claim nos. 1801044/2014, 1802149/2017 and 1802390/2018 are dismissed as having been presented out of time.[4]That part of the public interest detriment and dismissal allegations in Claim no. 1802391/2018 relating to an email from Mr McKernaghan to the Respondent’s legal advisers dated 10 July 2013 is struck out on the ground that it has no reasonable prospect of success.REASONS
[1]During the course of the Preliminary Hearing the Claimant withdrew his allegations of detriment and unfair dismissal for trade union reasons and he consented to these claims being dismissed. The Claimant withdrew his claim of sexual orientation discrimination at the Preliminary Hearing on 25 July 2014 and that claim has also been dismissed. As the Claimant had included allegations of unfair dismissal and detriment during employment on grounds of public interest disclosure in his first claim (Claim no. 1802391/2018), which had been presented in time, he withdrew those allegations in his later claims and these were also dismissed.[2]The parties agreed that the first claim in which the Claimant alleged breach of contract was Claim no. 1801044/2014, presented on 7 April 2014. The parties also agreed that the Claimant’s employment ended on 17 September 2013. This claim was therefore presented outside the statutory three-month time limit (see Article 7(a) of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994).[3]The parties agreed that the first claim in which the Claimant alleged that he had been the subject of post-employment detriments because of a public interest disclosure was Claim no. 1802390/2018 presented on 5 November 2015. The allegations were repeated in Claim no. 1802149/2017 presented on 27 October 2017. The Claimant clarified the dates of the alleged detriments. These took place in the period from October 2013 to 10 March 2015. (The Claimant applied for leave to amend Claim no. 1802390/2018 to include an allegation that in October 2015 Mr McKernaghan, his former line manager, had contacted the Benefits Agency to inform them that the Claimant was working whilst claiming benefits. The Tribunal refused this application for reasons given in the Order setting out that decision.) The claims were therefore presented outside the statutory three month time limit (see Section 48(3)(a) of the Employment Rights Act 1996).[4]The Tribunal therefore had to decide whether it had been reasonably practicable for these claims to have been presented in time. If it was not, then the Tribunal had to decide whether the claims had been presented within a further reasonable period (see Article 7(c) of the Extension Order, Section 111(2)(b) of the Employment Rights Act 1996). Time limits are not routinely extended: it was up to the Claimant to satisfy the Tribunal that it was not reasonably feasible for him to present his claims in time and that he had presented them within a further reasonable period.[5]Having heard evidence from the Claimant on the reasons for the timing of his claims, the Tribunal was satisfied that the Claimant is an able and intelligent man who was at all material times aware of his rights and of the three-month time limit for him to present his claims to the Tribunal. Although he presented no medical evidence to support this, the Tribunal accepted his evidence that for some months following his resignation from the Respondent’s employment he was in poor mental health. He was also homeless from November 2013 to February 2014. This did not prevent him, however, from engaging in clear, detailed and coherent correspondence with the Respondent. More significantly, he was able to present three claims to the Tribunal, one in late September 2013 (which was rejected because he used the wrong claim form), one on 30 September 2013 and one on 16 December 2013. The Tribunal considers that it would have been reasonably practicable for the Claimant to include a breach of contract allegation in these claims, but he did not do so.[6]In relation to the post-termination public interest disclosure detriments, the Tribunal accepted that the evidential basis for some of these allegations may not have come into the Claimant’s possession until early September 2015. This, he says, is when the Respondent provided the final instalments of documents he was entitled to receive under a subject access request he had made under the Data Protection Act. The Tribunal accepts that his request resulted in him being sent a large volume of documentation that he had to work his way through. The Tribunal was not told which particular documents were not released until September 2015, but the Tribunal was prepared to assume, without finding, that this might have made it not reasonable practicable for him to present his claim in time in relation to the allegations that were based on documentation he first saw as a result of his subject access request. These allegations were: Mr McKernaghan monitored his on-line activity from October 2013 to January 2014; in January 2014 Mr McKernaghan and Ms Sheen contacted his previous employers; Mr McKernaghan did not initially provide all the information to which the Claimant was entitled under his subject access request; and in August 2014 Mr McKernaghan accessed his personal drop box. Even if it had not been reasonably practicable for the Claimant to present claims in relation to these allegations in time, however, the Tribunal did not accept that he had presented his claim within a further reasonable period. It was a further two months after receiving the last of the documentation before he presented a claim.[7]The remaining post-termination allegations related to events of which the Claimant was aware at the time. These allegations were: in November 2013 to January 2014 Mr Bond delayed hearing the Claimant’s grievance appeal and failed to follow the Respondent’s procedure in relation to it; from August 2014 Mr McKernaghan delayed in responding to the Claimant’s subject access request; in September 2014 Mr McKernaghan subjected the Claimant to civil proceedings to recover documents; and in October 2014 and March 2015 Mr McKernaghan submitted affidavits to the High Court containing lies. The Tribunal heard no evidence to explain why it was not reasonably practicable for the Claimant to present a claim in relation to these allegations in time.[8]For these reasons, the Tribunal dismissed the allegations of post-employment public interest disclosure detriment and breach of contract on the ground that they had been presented outside the statutory time limit and the Tribunal therefore had no jurisdiction to deal with them.[9]During the course of the Preliminary Hearing, the Claimant clarified and agreed details of his claims of public interest disclosure detriment and dismissal. One allegation he made related to an email dated 10 July 2013 between Mr McKernaghan and a solicitor working for the Respondent’s legal advisers. This related to legal advice and also mentioned the possibility of the Claimant bring a Tribunal claim. The Tribunal was satisfied that this email was covered by both legal advice privilege and litigation privilege and that the allegation based upon it therefore had no reasonable prospect of success. The Tribunal therefore struck out that aspect of the claim under its power in Rule 37(1)(a) of its Rules of Procedure.[1]Judgment and reasons including the reasons for making a costs order, were given to the parties orally on 4 July 2019.[2]On 31 July 2019, the claimant made an application for reconsideration of the costs order. In that application he suggests he was ‘ambushed’ by the costs application that the tribunal reasons were ‘false’ because he had not agreed to the respondent’s costs application being dealt with at the hearing.[3]On 27 September 2019, the written reasons were sent to the parties. Pages 16 – 19 (paragraphs 90 – 102) of the written reasons deal with the application for costs, the representations made, the applicable law and the reasons why a costs order was made in the sum of £1000.[4]On 30 September 2019, Employment Judge Rogerson requested that by reference to those written reasons, the claimant should identify his grounds for reconsideration of the costs order. It was hoped that by doing that it would help him focus on those reasons in his written representations. Reconsideration Application[5]The claimant has provided written representations for his application by letters dated 31 July 2019, 11 October and 21 January 2020.[6]On 14 February 2020, the respondent provided written representations in response to the application with supporting documents to show the actual costs incurred by the respondent.[7]Both parties agreed to the reconsideration application being dealt with by way of written representations only.[8]Rule 70 provides that a tribunal may reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration the original decision may be confirmed varied or revoked. The claimant’s grounds for reconsideration[9]Unfortunately, the claimant has not used the further time given and that guidance to present focussed representations based on the written reasons. He complains that this meant he had to waste his “valuable time” submitting again an almost identical reconsideration application as the one submitted on 31 July 2019 (see paragraph 5 of his application on 11 October 2019).[10]Furthermore, his assertion that the reasons are ‘false’ and he had not agreed to the costs application being dealt with at the hearing are wrong. The panel at this hearing have checked their notes and can confirm that the claimant did agree and the reasons are correct. The claimant wanted the respondent’s application for costs to be dealt with at the hearing for his own convenience, to avoid another hearing.[11]Despite that agreement, and to ensure fairness the reconsideration hearing was listed and the claimant was given a further opportunity to put forward further representations. Unreasonable conduct by the claimant[12]Two examples of the claimant’s unreasonable conduct were relied upon by the respondent to support the costs application made at the hearing.(1) Allegation 9.3: on 3 July 2013 Ms Keiler sent the claimant a letter inviting him to a hearing that was headed “written warning/improvement notice appeal” and making reference to an appeal against the decision to issue him with a written warning/improvement notice, when he had not in fact been issued with such a warning or notice (the complaint subject to a deposit order).(2) Allegation 9:10 on 27 August 2013, Mr Stephen Bond gave the claimant only one day’s notice of a disciplinary hearing leaving him no time to prepare, accommodate his other work commitments, or arrange for trade union representation or colleague to attend with him (the complaint withdrawn at the hearing)[13]The claimant’s representations in relation to allegation 9:3 (the deposit order complaint) are set out at paragraphs 6 – 28 of his written representations. The claimant’s focus is on the history of the deposit order. None of that history changes the fact, that a deposit order was made in 2018, because Employment Judge Cox had assessed the merits of that allegation/argument as having “little reasonable prospect of success”. This was because the claimant accepted the heading and reference were typing errors made by Ms Keiher who immediately rectified and apologised for that mistake (see paragraph 4 of the reasons). The claimant knew there were little prospects of successfully arguing that a typing error was a detriment he was subjected to on the grounds of whistleblowing. Instead of withdrawing that allegation or not paying the deposit, the claimant chose to pay the deposit of £25 and continue. The claimant made an informed decision to continue despite the costs warning.[14]He was expressly warned that a consequence of continuing with that complaint and losing was that he “shall be treated as having acted unreasonably in pursuing that argument for the purposes of a rule 76, unless the contrary is shown”. All the applicable rules were set out in the written reasons provided to the claimant, so that he could use his ‘valuable time’ to address those matters in his application.[15]Not only has the claimant failed to address those reasons he has also failed to present any argument or evidence to rebut the presumption of unreasonable conduct. The claimant knew this allegation was based on a typing error. He knew that fact in 2013, when the letter was sent and rectified, he knew that in 2018, when the deposit order was made and he knew that at the final hearing. To continue to pursue this allegation in those circumstances was unreasonable conduct by the claimant. The Tribunal’s conclusions on that finding of unreasonable conduct are clearly set out in paragraph 98 of the Judgment and those reasons stand.[16]For allegation 9:10, the claimant’s representations do not explain why the claimant did not withdraw that allegation earlier and why he waited until the 3rd day of the hearing. He knew the allegation on the undisputed facts was not made out yet continued to pursue it. The Tribunal’s conclusions on both allegations and the finding of unreasonable conduct are set out in paragraph 98 as follows: “The claimant has not heeded the guidance given to him on the merits of a part of a claim where a deposit order is made in April 2019 and he has deliberately ignored the evidence he knew of since 2013. The deposit order gave very clear reasons based on the undisputed facts, explaining why allegation 9.3 on those facts had little reasonable prospects of success. The claimant was warned about the potential consequences of not heeding that guidance, and continuing with that part of the claim. His response to the costs application is that the respondent was adding insult to injury by the typing error. His perceived sense of offence may have clouded his judgment but it does not alter his understanding of the facts, it was a typing error. Similarly, for allegation 9.10 he knew it was an investigatory meeting not a disciplinary hearing, yet has chosen to continue to frame his case inaccurately by ignoring the undisputed facts. There may be cases where a document is open to interpretation, a factual dispute exists between the parties that needs to be resolved, and mistakes can be made. That was not the case here. The claimant has chosen to deliberately ignore the evidence, the undisputed facts and any guidance given to him at/in advance of this hearing.[17]The claimant has not addressed those reasons and the further reasons given at paragraphs 99 – 100. The claimant has not rebutted the presumption of unreasonable conduct for the deposit order for allegation (9.3) or explained why his conduct in relation to allegation (9.10) was not unreasonable conduct.[18]Our conclusions in relation to both allegations stand and we repeat and confirm the conclusion that the claimant had chosen to continue to frame his case “inaccurately by ignoring the undisputed facts”. “He had chosen to deliberately ignore the evidence, the undisputed facts and any guidance given to him at/in advance of the hearing”.[19]Having confirmed the unreasonable conduct findings and conclusions we considered whether the amount of costs ordered to be paid by the claimant was reasonable in the light of the representations made. The reasons for the award of £1000 are explained at paragraphs 100 – 103 of the decision.[20]The claimant focuses on the content of the witness statement of Mr Bond and states in his written representation (paragraph 33) that “It was identified at an early stage that he was no longer needed and the particular detriment in question was being withdrawn”.[21]The claimant withdrew that alleged detriment at 12:19 on 3 July 2019, the third day of the hearing before Mr Bond was due to be cross examined. It was not at an ‘early stage’. It could have been much earlier because he knew that the undisputed facts did not support the allegation made.[22]The respondent quite rightly points in its written representations to the ‘stage’ when the claimant could have made it known he was withdrawing that allegation. “At the preliminary hearing in July 2018 or at any time in correspondence (there was a significant volume) prior to the final hearing”. Had he chosen to do so, the respondent would not have been put to the expense of having to prepare to answer that allegation at the hearing by way of a witness statement, cross examination of the claimant and the attendance of Mr Bond.[23]The claimant’s criticisms of the content of the statement of Mr Bond are not relevant to decide whether it was reasonable to award the respondent costs in the amount awarded for the claimant’s unreasonable conduct. Had the claimant withdrawn at an earlier stage those costs would not have been incurred.[24]As to the total amount of costs ordered of £1,000, we have seen the respondent’s supporting documents providing a printout of time spent by the respondent’s solicitors of 274 hours and 25 minutes of £43,904 plus VAT of £8,780.80. With disbursements the total costs are £58,486.82 costs and £11,705.23 VAT. A considerable sum for a charity to pay.[25]The application for costs limited to £1,000 was very reasonable sum to claim in the circumstances. The costs application was specific in scope and focused on two particular aspects of the claimant’s unreasonable conduct. It could have been much wider in scope and of a greater amount.[26]The claimant has not challenged the costs information provided by the respondent and we accepted it accurately reflects the costs incurred in defending these proceedings in which every complaint made failed. The Tribunal reasonably concluded having considered the claimant’s ability to pay the sum of £1000 was reasonable. It reminded itself that the purpose of a costs order is to compensate the party in whose favour the order is made, not to punish the claimant. The sum claimed by the respondent of £1,000 was/is a reasonable sum and stands on reconsideration.[27]The deposit order sum of £25 is to be paid to the respondent and an instruction to that effect will now been made. This leaves a balance of £975 which the claimant is ordered to pay to the respondent.[28]The claimant has failed to ‘heed’ any warnings given to him in these proceedings and should consider very carefully what the respondent has said in its written representations at paragraph 30.[29]It is unfortunate that the claimant has continued to act in the same manner deliberately misconstruing events without any reflection on his own behaviour. One clear example of that is his false assertion that he had not agreed to the respondent’s costs application being dealt with at the hearing and his critical response to the tribunal giving him more time and opportunity to consider the written reasons. In response to that he has failed to add anything of relevance to the representations he made at the hearing.[30]He should take up the respondent’s offer to come to some arrangement for repayment and finally put some closure on a Tribunal process which based on the merits of the claimant’s claim should never have been brought.