Ms Y Andrews v Argent Services LLP and others: 2200148/2020
JUDGMENT
The claims for redundancy payment, notice pay, and holiday pay are dismissed under rule 52 on withdrawal by the claimant. CASE MANAGEMENT SUMMARY Listing the hearing[1]The claims are already listed for final hearing on 19-23 October 2020.[2]An open preliminary hearing is required to decide:(1) Whether the race and sex discrimination, and race harassment claims should be struck out as disclosing no reasonable prospect of success(2) Whether any of those claims should be the subject of a deposit order(3) Whether the claimant’s recording of conversation among the respondents and with the respondent’s legal advisers on 26 Number 2019 should eb admitted to evidence. This will be listed for a 3 hour hearing as soon as practically possible, and the parties agree it is probably suitable for a remote public hearing. There will be limited evidence from the claimant about the circumstances of the recording being made, and about her ability to pay, neither of which will give rise to extensive questioning. The claimant’s representative will check whether she has a suitable device and internet access. The rest is a matter of submissions.[3]The tribunal and the respondent were ready to proceed to hear the deposit order application and the admissibility application today, but the claimant’s solicitor was not, and wished to brief counsel on these issues. An open hearing is necessary of the respondent proceeds on the strike out application. The complaints[4]By a claim form presented on 15 January 2020, the claimant brought complaints of unfair dismissal, redundancy payment, race and sex discrimination, age related harassment, victimisation, and failure to pay notice or holiday pay. The respondent defended the claims. They arise out of the respondent’s decision to dismiss the claimant for redundancy.[5]Today the claimant’s solicitor confirmed that she had in fact been paid a redundancy payment, notice, and holiday pay. Those claims are dismissed on withdrawal. The issues[6]The parties have agreed a provisional list of the pleaded issues which is attached to this order. It may require editing after the claimant has given further information about the training allegations, or after the open preliminary hearing if any claim is struck out. Judicial mediation[7]The claimant expressed interest in this matter being dealt with by way of judicial mediation. The respondent prefers to consider mediation after the open preliminary hearing. Other matters[8]If the Tribunal determines that the respondent has breached any of the claimant’s rights to which the claim relates, it may decide whether there were any aggravating features to the breach and, if so, whether to impose a financial penalty and in what sum, in accordance with section 12A Employment Tribunals Act 1996.[9]I made the following case management orders. ORDERS Made pursuant to the Employment Tribunal Rules 2013[1]Further information 1.1 By 29 May 2020 the claimant is ordered to send the tribunal and the respondent further information about:(1) Her case on bumping, that is, which should have been in the pool for selection or what other jobs or staff should have been considered for redundancy, and(2) the opportunities for training it is alleged she was denied, to include when the training was denied, what training was denied, and details of any actual comparator, and if none, identifying the hypothetical comparator.[2]Preparation for Preliminary Hearing2.1 The claimant is ordered to send the respondent copies of notes and correspondence exchanged between the parties in the process of redundancy consultation and the grievance handling, and the recording and the transcript of the respondents’ conversation on 26 November 2019, by 11 June 2020. These are required for the tribunal hearing the open preliminary hearing applications to understand the context already known to the parties, and for the respondent to understand the process of making the recording.2.2 The respondent is to prepare a bundle of these documents and the pleadings and orders and send it to the clamant one week before the open preliminary hearing. If there is a remote hearing, an electronic bundle must be sent to the tribunal at the same time. If an in-person hearing, three bundles must be brought to the hearing.2.3 The claimant is to send the respondent by 11 June 2020 a witness statement about how and why the recording of the discussion on 26 November 2019 came to be made, and when she first heard it. In addition, if she wishes the tribunal to take account her ability to pay when deciding the deposit order application, she must set out what her means are and provide documents in support of that evidence. The tribunal must be sent an electronic copies, otherwise three paper copies to be brought to the hearing. Preparation for the Final Hearing2.4 By 26 June the respondent is to send the claimant copies of any documents relating to training opportunities identified by the claimant in her further information.2.5 Full disclosure of all remaining documents by list and copy is to be completed by 17 August 2020. Documents relevant to remedy must include evidence of all attempts to find alternative employment: for example a job centre record, all adverts applied to, all correspondence in writing or by email with agencies or prospective employers, evidence of all attempts to set up in self-employment, all pay slips from work secured since the dismissal, the terms and conditions of any new employment.2.6 This order is made on the standard civil procedure rules basis which requires the parties to disclose all documents relevant to the issues which are in their possession, custody or control, whether they assist the party who produces them, the other party or appear neutral.2.7 The parties shall comply with the date for disclosure given above, but if despite their best attempts, further documents come to light (or are created) after that date, then those documents shall be disclosed as soon as practicable in accordance with the duty of continuing disclosure.2.8 It is ordered that the respondent has primary responsibility for the creation of the single joint bundle of documents required for the Hearing. It is to be sent to the claimant by 7 September 2020.2.9 The respondent is ordered to bring five (three if the Equality Act claims have been struck out) copies to the Tribunal and take them direct to the hearing room by 9.30 a.m.[3]Witness statements for the Final Hearing3.1 It is ordered that oral evidence in chief will be given by reference to typed witness statements from parties and witnesses.3.2 The witness statements must be full, but not repetitive. They must set out all the facts about which a witness intends to tell the Tribunal, relevant to the issues as identified above. They must not include generalisations, argument, hypothesis or irrelevant material.3.3 The facts must be set out in numbered paragraphs on numbered pages, in chronological order.3.4 If a witness intends to refer to a document, the page number in the bundle must be set out by the reference.3.5 It is ordered that witness statements are exchanged so as to arrive on or before 21 September 2020.3.6 Each side must bring five (or three) copies of their witness’s statement to the hearing for the use of the tribunal. CONSEQUENCES OF NON-COMPLIANCE[1]Failure to comply with an order for disclosure may result on summary conviction in a fine of up to £1,000 being imposed upon a person in default under s.7(4) of the Employment Tribunals Act 1996.[2]The Tribunal may also make a further order (an “unless order”) providing that unless it is complied with, the claim or, as the case may be, the response shall be struck out on the date of non-compliance without further consideration of the proceedings or the need to give notice or hold a preliminary hearing or a hearing.[3]An order may be varied or revoked upon application by a person affected by the order or by a judge on his/her own initiative.[1]The claims of sex discrimination are dismissed on withdrawal by the Claimant[2]The audio recording and transcript of the private conference of the First Respondent’s managers and their discussions with their lawyers during that conference on 26/11/2019 (pages 17-28 of the numbered pages of the transcript and pages 344-355 inclusive of the hearing bundle for 11/8/2020) are inadmissible and must not be referred to or further adduced in evidence in this matter. The claims of age discrimination are struck out.[4]The Respondents’ application for an order striking out or depositing the race discrimination claims, is dismissed.REASONS
[1]The above judgment was given after a CVP open preliminary hearing during which I heard evidence on oath from the Claimant, was referred to a bundle of documents and received written and oral submissions from Counsel, and was referred to various authorities.[2]The tribunal considered it as just and equitable to conduct the hearing in this way. In accordance with Rule 46, the tribunal ensured that members of the public could attended and observe the hearing. This was done via a notice published on Courtserve.net. No members of the public attended. The parties were able to hear what the tribunal heard and see the witnesses as seen by the tribunal. From a technical perspective, there were no difficulties. No requests were made by any members of the public to inspect any witness statements or for any other written materials before the tribunal. The participants were told that is was an offence to record the proceedings. The tribunal ensured that the witness/es, who were all in different locations, had access to the relevant written materials. I was satisfied that the witness/es were not coached or assisted by any unseen third party while giving evidence. For Order 2 above Main facts[3]A covert recording was made by the Claimant of both the open sessions and of a private conference of the First Respondent’s managers on 26/11/2019, which was the final redundancy consultation meeting, at the end of which the Claimant was dismissed.[4]During the private conference the managers made two telephone calls to their solicitors and also had discussions between themselves. It is agreed that the recording of the open sessions is admissible. It is agreed that the recording of the telephone calls to the solicitors are inadmissible because they are privileged. The Claimant however wished to adduce in evidence the discussions between the managers during their private conference when they were not speaking to their solicitor, (hereafter referred to as “the unprivileged discussions”). This was opposed by the Respondents.[5]The recording of the unprivileged discussions was made during an adjournment of the open sessions of a meeting with the Claimant, during which adjournment the Claimant and her TU rep had withdrawn so that the Respondents managers could confer in private. I find that the Claimant deliberately and with premeditation, made a covert recording, which she knew was a breach of privacy which would have been objected to had it been known about by the Respondents, and which she did not disclose when the open sessions of the meeting resumed. Thus, the Claimant was able to converse privately with her union representative but denied the same to the Respondents by covertly recording their discussions. The Claimant was dismissed from her employment at the end of the meeting, and subsequently appealed. Even then she did not reveal the recording, and the first the Respondents learned about it was when when they received the ET1 form.[6]The unprivileged discussions include some unprofessional comments, snide remarks about the Claimant, and inappropriate jocularity on the part of the First Respondent’s managers. The main subject of discussion was how to dismiss the Claimant while at the same time minimising the risk of her bringing a subsequent successful tribunal claim. While the unprofessional comments, snide remarks and unwarranted jocularity does not reflect well on the managers, the record, even if it was adduced, would not provide incontrovertible or even strong evidence to support the Claimant’s claims. There was no reference to sex or race, and during the unprivileged discussions there was some reference to the operational reasons why the Claimant’s dismissal was thought to be appropriate by the managers, which reasons are consistent with the thrust of the First Respondent’s defence to the unfair dismissal claim. In any event, the Claimant’s case is not based on what took place during the unprivileged discussions. Her case is that there was no real redundancy situation, and no meaningful consultation etc[7]The Claimant’s main reason for wishing to adduce the unprivileged discussions was so that she could rely (in support of her claim for age discrimination) on a single reference made by one of the managers, (a Ms Sadler), to age.[8]However, in context even that may fall short for these purposes. As confirmed by Mr Stephenson, the Claimant (who was 49 years of age at the time) does not suggest she was dismissed because of her age. She wishes to claim that Ms Sadler’s comment about age was an act of harassment or unfavourable treatment against the Claimant.[9]Context is all important in harassment claims. Ms Sadler’s comment is not “incontrovertible evidence” of age discrimination. It was made solely in response to an hypothetical and irrelevant reference to age (of youngsters who might suffer in a redundancy selection because of perceived lack of experience) made by the Claimant’s TU rep during the previous open session. Ms Sadler’s subsequent private comment was a factual observation that the TU reps’s opinion that young employees are often disadvantaged during redundancy processes was not relevant to the Claimant. Ms Sadler then added a comment about her own age. Even if the Claimant is genuinely offended by this, it is an unattractive submission that it should be regarded as actionable harassment when she heard it only as a result of a covert recording made by her in breach of privacy.The law
[10]Covertly recorded material is not automatically inadmissible just because the manner in which it was obtained was underhand and dishonest: Chairman and Governors of Amwell View School v Dogherty [2007] IRLR 198 at 68 and Vaughan v London Borough Of Lewisham (Unreported, UKEAT/0534/12/SM) at 12. In each case a balance must be struck between two competing public policy interests: A) the interest of the claimant in having all relevant evidence admitted; and B) the interest of the employer in preserving the integrity of their private deliberations when determining whether to terminate employment.[11]In turn, this requires an assessment 1) of the relevance of the evidence contained in the recording to the issues in the case (Dogherty at 27); and 2) the context of the deliberations and expectation of privacy. As to 1) this is a question of fact and degree: even if relevant, how relevant is the covertly recorded material (Vaughan at 22)?[12]As to 2), where the covert recordings are of a part of a meeting where it would be expected that there might be a written record, it is less likely that the recordings will be held inadmissible (Dogherty at §69). But where the recordings are of private deliberations, it is more likely they will be held inadmissible even if the material that is therefore excluded has been found to be relevant under 1). That is because there is a strong policy interest in panel members being able to deliberate freely in private (Dogherty at 72-73): “Important as the public policy is that a party to proceedings should be able to avail themselves of any relevant evidence, it seems to us that there is in the instant case a contrary and superior public policy dimension that arises. Here, the panel members invited all parties and witnesses before them to withdraw, expressly so that they might deliberate privately. All parties – including Mrs Dogherty and her representative – accepted that invitation without demur on the premise that by doing so they would disable themselves from having any record of what might be said. That will have been underscored by the requested absence of the clerk at that point, making it clear that no note of the deliberations was being made. Likewise, those participating in the deliberations will have done so on the premise that no one of their number would then disclose or publish what had occurred during the private deliberations. Had one of the parties, or a witness, returned to the hearing-room whilst deliberations were underway, everyone involved would have understood that they would have been asked to leave and that discussion would have stopped whilst they were present. …In our judgment there is an important public interest in parties before disciplinary and appeal proceedings complying with the ‘ground rules’ upon which the proceedings in question are based. No ground rule could be more essential to ensuring a full and frank exchange of views between members of the adjudicating body (in their attempt to reach the ‘right’ decision) than the understanding that their deliberations would be conducted in private and remain private. How, otherwise, could a member of that body confidently expose for discussion a doubt concerning some evidence about which he or she was unsure? The failure to maintain respect for the privacy of ‘private deliberations’ in this context would have the important consequences of(1) inhibiting open discussion between those engaged in the task of adjudicating and(2) giving rise to a good deal of potential satellite litigation based on ‘leaks’ by particular members of the adjudicating body or from the clandestine or unauthorised recordings of such proceedings”.[13]The balancing exercise referred to in Dogherty will not, however, always result in secret recordings of the private deliberations of a panel conducting grievance or disciplinary hearings being excluded. In Punjab National Bank (International) Ltd v Gosain UKEAT/0003/14 (7 January 2014, unreported), a case involving claims of sexual harassment, sex discrimination and constructive unfair dismissal, such evidence was admitted by an employment judge because of the nature of the comments allegedly made by members of the panels during the private sessions. These consisted of personal and offensive remarks made about the claimant, and other statements indicative of a wholly improper approach to the task which the panels were convened to perform. According to the employment judge, these comments, if said, fell 'well outside the area of legitimate consideration' of the matters to be considered by the grievance and disciplinary panels, and this distinguished the case from Dogherty. In any event, she held that, given the nature of the alleged comments, there were no public policy reasons for excluding them even though they were made in private. The EAT upheld the judge's decision. Judge Peter Clark held that the distinction with Dogherty was legitimate, and that the judge had properly performed the necessary balancing exercise between the competing public policy interests. He further upheld the employment judge's order admitting the entirety of the recordings of the private discussions, and not just those parts which were considered objectionable, leaving it to the full tribunal hearing the case to assess the cogency of the recordings and their impact on the issues to be determined. Assessment[14]The material in the unprivileged discussions is not cogent or incontrovertible evidence in favour of the claims. It is ambiguous and double-edged at best.[15]I do not find that the facts in this case are similar to those in Punjab. In that case outrageous abusive comments made in private about sex were unsurprisingly admissible in a subsequent sex discrimination claim.[16]In the instant case some foolish unprofessional remarks were made but they fall short of the degree of offensiveness of the remarks made in Punjab, and they would be of little or no assistance to any proper determination of the claims.[17]I also do not accept Mr Stephenson’s submission that, because the managers did not anxiously consider all the Claimant’s arguments, and instead spent much of the time during the unprivileged discussions considering how best to protect the Respondent from an anticipated tribunal claim, that it follows that the said discussions fell 'well outside the area of legitimate consideration' of the matters to be considered by a dismissing panel.[18]Whether or not there was a genuine redundancy and, if so, whether proper consideration was given to the alternatives to redundancy, will be matters for the unfair dismissal claim. Most if not all dismissing panels will give consideration to self-preservation, and, more to the point, wish to do so in private, without being bugged by their own employee.[19]For these reasons I find that the forensic interest in the Claimant being able to adduce the unprivileged discussions is outweighed by the interest of the employer in preserving the integrity of their private deliberations. For Order 3 above[20]The only “evidence” relied on by the Claimant in respect of her age discrimination claims is the single comment in the unprivileged discussions, which are inadmissible. Mr Stephenson sensibly accepted that if this material was inadmissible, the age discrimination claims would have to be struck out as having no reasonable prospect of success. For Order 4 above[21]The Claimant has referred to a number of facts and matters in support of her race discrimination claims including a lack of training, claimed breaches of the EHRC Code of Practice, a claimed premature decision to make her role redundant on 02.08.19 prior to any consultation meetings or discussions with her, and “keeping her in the dark” unlike her white comparators Mark Young and David Scudder. She also points to statistical evidence about the racial profile of the work force and her team.[22]I am unable without hearing detailed evidence to properly assess the weight of these allegations and I am unable to safely conclude that the race claims have little or no reasonable prospect of success. Hence it is inappropriate to either strike out or deposit those claims. J S Burns