Mrs S Mir v OmniaMed Communications Ltd: 2201614/2022
EMPLOYMENT TRIBUNALS
Case No 2201614/2022
Between
Mrs S MirClaimantOmniaMed Communications LtdRespondent
Before
Employment Judge Mr J S BurnsIn person for claimantDate 13 June 2023
JUDGMENT
The Claimant was disabled by epicondylitis and arc syndrome during her employment with the Respondent.
REASONS
[1]I had to decide as a preliminary issue whether at all material times, (February to November 2021) the Claimant had a disability within the meaning of section 6 of the Equality Act 2010, the Claimant relying on epicondylitis (pain around the outside of the elbow) and arc syndrome (shoulder pain) as the relevant physical impairments.[2]She claimed in her ET1 that these conditions cause “pain and weakness in her right arm including right hand and fingers.” She explained that this was worsened by an injury at home on 2/6/21 caused by her trying to open a tin can using a ring-pull.[3]I was referred to a PH bundle of 155 pages. We had some difficulties with the bundle as various versions had been sent recently to the Claimant. I resolved this by referring to an earlier version of the consolidated bundle which the Claimant received a few days ago, and by allowing the Claimant to send me any additional documents she wanted to refer to. She was happy with this approach.[4]The Claimant also raised at the outset her concerns that the Respondent had not given disclosure of the Respondent’s version of documents reflecting a “display screen equipment assessment” (“DSEA”) filled in by the Claimant during the course of her work for the Respondent is 2021. The Respondent said it had nothing further to disclose in this regard. I decided to make an Order of Specific Disclosure about this (see separate CMO) but that it would be disproportionate to postpone the OPH today, particularly as the Claimant was able to refer me to her version of the document (for example page 132 of the bundle) and in any event the document appeared to go principally to the issue of knowledge of any disability rather than to the question whether the Claimant met the statutory definition.[5]In addition to the bundle I received some emails from the Claimant with some texts and other further extracts from the DSEA. I was also supplied with written skeleton arguments from each side and a Respondent’s authorities bundle. I heard evidence on oath from the Claimant and then received closing oral submissions. I have considered all of this.[6]At the Claimant’s request I had two ten-minute breaks during the hearing as well as the lunch break.[7]In the bundle appeared a judgment in the Employment Tribunal in Bury St Edmonds dated 20/6/22 in case number 3307564 2020 in which the Claimant was held not to be disabled. That judgment refers to the period when the Claimant was employed by a previous employer namely Iqvia Ltd which the Claimant told me was from October 2019 to March 2020. In 3307564 2020 she had relied (in her unsuccessful claim to have been disabled), on the same impairments as she relies on in the instant claims. A different period is under examination in the instant claims, and the issue is to be considered afresh. However it is regrettable that the Claimant, contrary to her disclosure obligations in the instant litigation, failed to disclose this relevant document, which instead was found and disclosed by the Respondent’s solicitors. There are no written reasons for this previous judgment and when I asked the Claimant, who was present when the oral reasons were given, for a summary, she was unwilling or unable to comply with my request.
Relevant law
[8]Per section 6 Equality Act 2010, a person has a disability if they have a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day to day activities.[9]A claimant does not have to show why she has an impairment - but merely the fact that she does have one; Millar v Inland Revenue Com 2006 IRLR 112. The question is “Is there something wrong with Applicant?” The Applicant does not have to show that the underlying cause of her impairment is physical (rather than mental); College or Ripon v Hobbs 2002 IRLR[10]“Substantial’ means “more than minor or trivial” (per section 212) and a limitation going beyond the normal differences which may exist between people.[11]In assessing whether there is or would be a substantial effect, one disregards measures such as medical treatment which are being used to treat it. Sch 1 para 5(1) and (2). However, account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy to prevent or reduce the effects of an impairment on normal day to day activities.[12]Normal day to day activities are activities such as walking, driving, typing and forming social relationships.[13]The effect is long term if it has lasted or is likely to last 12 months or for the rest of the person’s life (Sch 1 para 2).[14]Under Section 6(5) EA 2010 the Secretary of State has issued guidance on matters to be taken into account in determining questions relating to the definition of Disability.[15]C5 in the guide deals with recurring or fluctuating effects as follows “If an impairment has had a substantial adverse effect on a person’s ability to carry out normal day to day activities, but that effect ceases, the substantial effect is treated as continuing if it is likely to recur. In deciding whether a person has had a disability in the past, the question is whether a substantial adverse effect has in fact recurred.”[16]C7 states “It is not necessary for the effect to be the same throughout the period which is being considered in relation to determining whether the long-term element of the definition is met. A person may still satisfy the long-term element of the definition even if the effect is not the same throughout the period. It may change: for example activities which are initially very difficult may become possible to a much greater extent. The effect might even disappear temporarily. Or other effects on the ability to carry out normal day-to-day activities may develop and the initial effect disappear altogether.”[17]D2 includes the following as an example of an indirect effect resulting in defined disability “A man with osteoarthritis experiences significant pain in his hands undertaking tasks such as using a keyboard at home, peeling vegetables opening jars and writing”.[18]In the Appendix to the Guide the examples of factors which it would be reasonable to regard as having a substantial adverse effect include inter alia “difficulty preparing a meal, for example because of restricted ability to do things like open cans or packages …” and “difficulty in picking up and carrying objects of moderate weight, such as a bag of shopping or a small piece of luggage with one hand” Findings of fact The period 31/12/2019 to 22/2/21
Findings of fact
[19]The Claimant started to experience relevant problems on 31/12/2019 and consulted with her GP about this on 13/1/2020 complaining of right arm pain which she attributed to her having helped her father at AE two weeks prior.[20]On 23/1/20 she complained to her GP that the problem was ongoing and that it was aggravated by cooking or lifting. By 20/2/2020 she said that the constant pain was gone but was still experienced when doing some movements - ie when cooking. The GP described the problem as “golfer’s elbow”.[21]The GP referred her to an NHS physiotherapy service and the period up to the end of August 2020 is summarised in the report of Michaella Cobb, an NHS Physiotherapist, dated 26/8/2020 as follows: “Mrs. Mir was referred by her GP for Physiotherapy Assessment of her R arm pain and decreased function and attended her first appointment on 11/03/2020. She reported at that time a current history of right arm pain since Dec 2019 which she attributed to occurring a few days after pushing a wheelchair and noted she had difficulties in using that arm in in activities of daily living (ADL), such as cutting vegetables. She reported she was currently taking Vit D, but otherwise no other medication, and had no other ill health. She stated she worked full time as a medical editor and was the main carer for her elderly parents. As previously stated her main concerns were the effects of her symptoms on her ADL and her expectations of treatment were to be able to use the arm more easily in everyday tasks. Mrs. Mir described her R arm symptoms as a tight restricted pain at a level of 8-9/10 on the visual analogue scale that was brought on by activities such as cutting vegetables, lying on her right side or carrying heavy objects and eased by resting, massage or previously prescribed exercises. She did not report any difficulty sleeping, paraesthesia, numbness or a specific time of day when the pain was at its worse. She did not report neck pain. On examination she had near full pain free active range of movement (AROM) of her cervical spine- except reporting a stretch sensation on stretch to opposite side flexion. Full pain free AROM shoulders, elbows, wrists and thumbs. Muscle strength of the Right shoulder, elbow and wrist were observed as 5/5 on oxford scale. R grip and opposition of thumb were noted as normal. Thoracic Spine rotation was noted as stiff and was reduced bilateral (1/2 range of movement). A diagnosis of myofascial tension was suggested and she was taught and issued a Home exercise programme of Upper limb, Thoracic and Cervical stretches. Subsequent follow up appointment on 25/06/2020 was by telephone consultation due to Covid -19 pandemic restrictions. Mrs. Mir reported at that time that she had still been getting a lot of pain in her affected arm and on noting swelling she had attended AE- who diagnosed an infection in her blood and prescribed antibiotics, which had since eased the swelling. She also reported she remembered prior to the injury of her right arm that she had previously described, that she had increased her workload and had a lot of overuse of the right side, her dominant side, and wondered whether that had led to pain/injury from repetitive overuse and strain. She stated she had not been able to do her exercise programme regularly as advised, as she had not generally been feeling well (wondering if perhaps she had had covid-19) and also having to look after her parents. She agreed to restart her exercise programme and a review was arranged for 09/07/2020 to assess her progress. A telephone consultation on 09/07/2020 revealed although she was trying to comply with her exercise programme more often she was still unable to do as frequently as advised but that she had started a fitness class online set up through Kingston Carers so was trying to do more gentle exercise and movement in general. She reported as stress could aggravate her pains that she had also signed up to relaxation sessions. She still noted occasional swelling into the lateral aspect of her R hand and little finger and was advised if she noted any general body swelling to consult her GP. She agreed to continue with her exercise programme and be reviewed in a further 2 weeks’ time. On her follow up telephone consultation on 29/07/2020 she reported that she had found chopping and cutting vegetables slightly easier and had been compliant with her exercises initially but currently had not been able to do as much as unwell with tonsils and aching muscles. She was advised on Covid-19 symptoms and urged to telephone her GP surgery for remote consultation if she developed any. She agreed to a progression in her exercise programme and additional strengthening exercises for Right upper limb was taught and issued by email to her. A further follow up appointment by telephone was arranged. In her telephone follow up consultation 01/09/2020 Mrs Mir stated she had been able to manage her exercises and that the pain was now reasonable and more manageable although still getting aggravated by chopping vegetables or doing heavy duty work. She stated she was aware this pain is likely due to the overuse when caring for her parents and from her work and previous injury but management with the exercises given and selfmassage given helped her pains. She was also aware of relaxation techniques and mindfulness for her stress. She stated she was happy to continue with her current management with her exercises and advice in order to self-manage her pain. She reported she was feeling better in herself from exercising and was advised to make sure she is taking time for herself to relax as it was important not to overdo it as this overuse can irritate the pain. She was happy to be discharged and if she had any further problems in the future to seek GP advice if symptoms were flaring up and not settling. “[22]As explained in M Cobb’s statement and in the Claimant’s oral evidence, the treatment up to the end of August 2020 was not actual physical physiotherapy but consisted in her talking to NHS physiotherapists remotely (because of Covid19 lockdowns) and her undertaking (apparently intermittently and inconsistently) “a home exercise programme of stretches.”[23]The Claimant discharged herself from the NHS physio support in late August 2020 and started getting actual physiotherapy from a private physiotherapist (Jessal) on a fairly regular basis - once every 2 or 3 weeks or so - and she remained in receipt of this treatment from then on at all material times (except for the period between 5/8/21 and 27/10/21 when there was a gap in this treatment (which gap the Claimant attributed to Covid19 issues).[24]There is no statement from Jessal as to what the purpose and effect of his treatment was, but in her oral evidence the Claimant explained that it was “exercises and manipulation of her neck shoulders and back for purposes of releasing her muscles”. She said that this treatment helped her to keep her arm pain at bay (“to contain it” was her phrase).[25]On 26/11/2020 the Claimant’s GP recorded “bilateral shoulder movement very limited - pt has been seen by physio in the past…muscle tenderness around shoulder joint”[26]At the end of 2020 the Claimant’s father died and she became pre-occupied by that.[27]The next relevant GP record is on 2/2/21 when the Claimant reported ongoing arm pain and “tightness” and the next on 16/2/2021 when she reported the same, saying it was aggravated by “cutting food, stirring, working long hours and weight on her arm”. On examination she felt “general heaviness and aching in both shoulders”. The notes state “ongoing lateral epicondylitis R side … no red flags or overt neural symptoms” but state that the Claimant reported “fine dexterity – no problems” The period from 22/2/2021 (start of employment with Respondent) up to 2/6/21 (date of kitchen incident)[28]In her Emergency Contact Form completed for purposes of her employment on 3/3/21 the Claimant was asked by the Respondent to “state any medical details which we should be aware of in the event of an emergency”, but did not make any reference to problems with her arm or shoulder.[29]There are no further references to right arm issues in the GP notes until June 2021 The period 2/6/21 (date of kitchen incident) to 2/11//21 (date of notice of termination of employment)[30]The Claimant hurt herself while working in her kitchen at home on 2/6/2021. The Claimant’s impact statement and oral evidence was that she was “opening a tin can using a ring pull”.[31]The Claimant attended her GP on 2/6/21 and reported the incident and her hand pain to her line manager the same day and there were further text/email exchanges about this on 3/6/21, 7/6/21 and 14/6/21. 32. 14/6/21 the GP K de Wit wrote “Please note that Mrs Mir presented on 2/6/21 to the surgery, having sustained an injury to fingers on her right hand while chopping with a knife in the kitchen”. The pain has radiated up her arm towards her shoulder and is ongoing”.[33]I accept that in referring to “chopping with a knife” the GP letter is wrong in recording what the Claimant had said and that this does not reflect inconsistency on the Claimant’s part.[34]In the following months the Claimant filled in some DSEA forms. On 2/7/21 she wrote for example “Due to injury to my right hand/arm I get discomfort”. On 5/7/21 she wrote “Due to injury hand is not used much. But when the mouse is used hand gets stiff and there is reduced movement in it. This stiffness travels up to arm and shoulder. The high level of pain has gone but the above discomfort is present”.[35]The GP notes for 7/7/21 state “had epicondylitis last yr which didn’t fully heal….was better with physio..” On 21/7/21 they read “pain is still present but reduced. still feeling tightness in her hand”. On 30/7/21 : “had epicondylitis..seeing physio index finger hypersensitivity..neck pain and stiffness..” On 26/8/21 : “shoulder injury”[36]On 27/8/21 the Claimant asked to reduce her working hours.[37]On 27/9/21 at work on a DSEA form the Claimant wrote “Ergonomic mouse has been tried. It helped slightly but there is continued stiffness, sometimes more than others.”[38]On 5/10/21 she was signed off sick for work for a week. The GP note following a telephone consultation reads: “had ongoing cervical radiculopathy - flare up over last couple of days - radiates to neck..tingling in hands and arm on/off. Right hands weaker and feels more stiff..paracetamol has helped..has tried physio in the past - has tried exercise which have helped.”[39](With regard to the reference to paracetamol in the previous paragraph, the Claimant told me that she has taken paracetamol but only intermittently - for example she might have taken it one day in every 4 to 6 weeks, as she is averse to taking medicine.)[40]On 6/10/21, following a face to face consultation, the GP referred the Claimant to a musculoskeletal specialist. The referral letter reads as follows: “Thank you for reviewing Shaukia Mir, a 60 year old who has presented on multiple occasions over the past 6 months with cervical radiculopathy. She describes neck pain associated with right sided finger tingling and numbness, in the middle, ring and little finger specifically. She also describes shooting pain and recently has been feeling some weakness in her right arm and hand, which is new with this episode. For her job she is required to type and use the computer mouse, and feels in the last week this has been increasingly difficult and has required to take time off work. On examination she has no obvious muscle wasting or fasciculation. Her tone and reflexes are intact. She has altered sensation in her C7, C8 and T1 dermatones on her right upper limb compared to her left. She also has general weakness bilaterally but more noticeably on elbow extension and finger grip on her right side, power 4/5.”[41]On 25/10/21 in the DSEA form back at work the Claimant wrote: “I have been using both hands to relieve discomfort on the injured side. This still leaves stiffness, but now the left side has become affected as well…” The period after 2/11/21 (the notice of termination of employment)[42]The Claimant told me that she had undergone an MRI scan of her neck/shoulder and an XRay in late 2021/early 2022 but these had not shown up the source of her problems.[43]She said she has continued to suffer problems with her arm and hand and the matter is still under investigation.[44]Amanda Clifford the NHS Orthopaedic Physiotherapy Practitioner to whom the Claimant had been referred, wrote on 17/11/2021 suggesting that the Claimant may have cervical spondylosis and that the Claimant had described “not being able to sit for long or manage cooking or cleaning well. She has managed to drive here today for the first time in a long time. Her pain affects her sleep and her movements throughout the day”[45]On 5/1/22 Dr Elizabeth Thorpe (an NHS GP) wrote “She also has golfer’s elbow that started in January 2020 and it seems to have been prolong(ed) until now.” 46. 13/5/22 Keval Panchal (NHS physiotherapist) wrote : ‘Mrs Mir initially complained of epicondylitis – Tennis Elbow/ Golfers Elbow pains, and rotator cuff pains which originally occurred in December 2019. She was seen by the GP in January 2020, and by local physiotherapy in February 2020 to go through exercises, and conservative management, being seen up until September 2020. She was then reassessed in February 2021 and has subsequently still complaining of these pains. …Patients can complain of these issues frequently, and with tendonitis issues, these can vary in timeframe, and although being seen by the physio showed a good prognosis, if provoked and re:aggravated, these tendonitis based pains can take many months, if not causing chronic pain beyond a year. The pains mostly depend upon ceasing or reducing aggravating factors, and strengthening muscles and associated tendons to alleviate tendonitis issues. This can impact on day- to-day activities as many daily activities- causing repetitive strain injuries can reprovoke tendonitis type pains. …With respect to tendonitis type issues as mentioned above such as tennis elbow and rotator cuff pains, if problems do tend to persist, and conservative management in the form of physiotherapy and exercise programmes do not provide relief, then further investigation and possible interventions such as corticosteroid injection therapy, shockwave therapy could be explored. …Where symptoms may cease, strength based exercises can help prevent reoccurance of pains, but pains can reoccur if aggravating activities causing repetitive strain such as overhead lifting, typing, lifting as not modified. …Please see NICE guidelines for tennis elbow and rotator cuff injuries for further information. ‘[47]On 13/6/22 Dr R Meade, an NHS GP wrote “To whom it may concern: Many thanks for your consideration of this 61 year old patient who has recently attended the surgery with a number of different problems which are causing considerable distress and impact on her activities of daily living. She has been suffering with long standing but slowly worsening symptoms effecting both her arms which has resulted in great difficulty in performing everyday tasks and is causing a significant amount of mental anxiety and distress. She is currently awaiting to speak to a physiotherapist here at the practice regarding this and has been extensively investigated in hospitals with investigations including an MRI scan to try to determine the cause of this concerning symptom. More recently she is now developing a progressive jaw pain which is effecting her ability to eat. …She feels she is currently going to struggle to meet the needs required of her and would appreciate any understanding on your part with regards to mitigating circumstances as she is unable to perform her duties adequately.”[48]On 8/7/22 Dr Meade wrote; “Thank you for reviewing this letter regarding the above named patient who has presented to the surgery a number of occasions now with multiple symptoms of epicondylitis, tendonitis and cervical radiculopathy. The symptoms have been causing her great discomfort since approximately 2020 and she has been seen here by physiotherapists on a number of occasions and has been seen in the community for the same issues. She often finds the symptoms are worse at night and has great difficulty of the cleaning and maintenance of her home. She is currently relying on analgesia and physio interventions to try and manage her symptoms although there seems to be no improvement in them. Blood tests have been requested and are pending. The end point of her symptom resolution is unclear.” Conclusions What is the impairment?[49]It has been claimed in the pleaded case as epicondylitis (pain around the outside of the elbow) and arc syndrome (shoulder pain).[50]Various medical professionals have used a variety of other terms to describe the impairment as follows:[51]Ms M Cobbe in 2020 described the condition as myofascial tension (this means persistent muscle pain after an injury).[52]Keval Panchal in his 13/5/22 report describes the same problem in January 2020 as “epicondylitis – Tennis Elbow/ Golfers Elbow pains, and rotator cuff pains”. (Rotator cuff pains are pains in the group of tendons which keep the arm in the shoulder socket.)[53]In July 21 and in her sick note issued on 5/10/21 and in her referral letter also in October 21 the Claimant’s GP described the Claimant’s condition as cervical radiculopathy. (This means a "pinched nerve," and it occurs when a nerve in the neck is compressed or irritated where it branches away from the spinal cord. This may cause pain that radiates into the shoulder and/or arm, as well as muscle weakness and numbness).[54]Amanda Clifford called it cervical spondylosis. (This is neck pain caused by age-related 'wear and tear' to bones and tissues. The most common symptoms of cervical spondylosis are neck pain, stiffness and headaches. More rarely, it can trap nerves in the neck, leading to: pain radiating from the arm).[55]It is clear that the exact cause and proper classification of the impairment/s has not been found and is still being investigated.[56]The case law referred to in paragraph 9 above suggests that it is not essential for a claimant to identify the cause or the exact medical name or names for her impairments. What is necessary is that she prove that she has an impairment of some kind.[57]Applying this approach, it is clear that the Claimant does have an impairment namely a tendency to suffer pain and debility in her right hand, arm and shoulder. That tendency may have its origin in her cervical spine, in her shoulder or elbow, in her soft tissue such as nerves tendons and muscles, or in psychological or emotional factors or other functional overlay, or a combination of all or several of these. It is unnecessary for me to make a definitive finding about the exact and exhaustive medical name which should be applied to this.[58]I reject the Respondent’s submission that the cause of the flare-up in June 21 was a new impairment unrelated to that which had been suffered up to that date. While the medical professionals have used different terms to describe the Claimant’s impairment affecting her right shoulder, arm and hand, none of them have supported such a submission. On the contrary, the GP notes and the comments especially by Thorpe, Panchal and Meade suggest that there has been a continuing single impairment with different manifestations starting in early 2020, and continuing to the date of their reports.[59]Furthermore, the initial onset of the problem on 31/12/2019 and the flare-up on 2/6/21 both started with right hand arm pain triggered by the Claimant doing ordinary everyday tasks which a healthy 60 year old woman should not have problems with.[60]While the pleaded terms “epicondylitis and arc syndrome” may not completely cover the exact nature of the impairment, they suffice for present purposes and should be taken in these proceedings to refer to the whole of impairment described above. The effect of the impairment on the Claimant’s ability to do day-to-day activities[61]The Claimant’s evidence in her impact statement suggests that she has experienced significant problems since January 2020 onwards and continuing. She stated the following: “The activities that were severely impacted by disability, which would also be impossible without medical treatment (painkillers, massage, physiotherapy/prescribed exercise etc) are:i. Sitting with my right arm bent. ii. Typing on a computer.iii. Operating a mouse.b. Lifting everyday objects. c. Cooking (peeling, grating, chopping, stirring, moving pots and pans etc). d. Eating and drinking would be problematic (for example, gripping a cup of tea).e. Sleeping (the pain, untreated, would keep me up all night, and even with painkillers, I would toss and turn and wake up if I moved onto my right side). f. Using a telephone.g. Writing (I am right handed).h. All self-care (brushing my teeth, brushing my hair, washing, applying makeup, and getting dressed). i. Carrying my grandson. j. Driving. k. Opening doors. l Using the toilet. m. Using public transport.n. Socialising and mental tasks (the pain and lack of sleep leaves me irritable and exhausted). 32. To be clear, the above were the impacts of my disability from January 2020 and whilst they had fluctuated at different times, on 2 June till now I still experience these impacts’[62]The Respondent criticised the Claimant’s credibility, based mainly on the fact that the Claimant had not disclosed the Bury St Edmunds judgment referred to above, but also based on some minor discrepancies between details of the Claimant’s account, and entries in the medical notes, one of which I have referred to already.[63]The Claimant lives with her husband and two adult children. Although she claims she has required assistance from them to carry out day-to-day activities, she did not call any of them to give evidence. She however is a litigant in person and told me she did not even think of doing so.[64]I have considered these points but I nevertheless find the Claimant to be a reasonably credible and reliable witness. Her description in her impact statement goes further and is more detailed than what she is recorded as having told her GP and physiotherapists in the documents reviewed above, but is nevertheless consistent with and corroborated by those records.[65]Although the Claimant appears to be a person who avails herself very regularly of the services of the NHS for a variety of complaints, including some of which (such as skin conditions, boils cysts etc) are irrelevant for present purposes, I find that she would not have consulted so regularly with her GP, physios, MSK specialists etc as well as incurring the expense of regular private physiotherapy session with Jessal over an extended period unless she was suffering significant adverse effects from her impairment.[66]I accept her evidence about the impacts of her impairment. Long-term impact[67]I reject the Respondent’s submission that the Claimant did not suffer a substantial adverse effect before June 2021.[68]I agree that the impact of the impairment has fluctuated. It started on 31/12/2019, had abated somewhat with the assistance of the NHS physio support and her home exercises in the Autumn of 2020, but worsened again at the end of 2020. During the first couple of months of her employment in 2021 it abated again, during which period the Claimant kept her symptoms at bay with the help of physio from Jessal, home exercises, occasional paracetamol and modifying her behaviour. However the problems and impact flared up again from 2/6/21 following the kitchen incident and were continuing when her employment ended.[69]As confirmed by the Guide, a fluctuating or recurring impact can be considered as long-term in certain cases. I find that this is such a case and that that the substantial adverse effect continued from January 2020 to the end of her employment with the Respondent .[70]This conclusion is reinforced by the fact that throughout, the Claimant was receiving and selfadministering treatment to mitigate the effects; and had this not been the case, the impact would have been even worse. Summary[71]I find that the Claimant has had the pleaded impairments since January 2020 causing a substantial adverse effect on her ability to do day-to-day activities and that this situation was long term in that it had lasted at least 12 months by the time the Claimant’s employment with the Respondent started, and it then continued during the whole of that employment. J S Burns
Law
[72]The EAT in Bayley v Whitbread Hotel Co Ltd t/a Marriott Worsley Park Hotel and anor EAT 0046/07 emphasised the importance of a tribunal clearly analysing whether a fair trial is possible. That was a case in which the claimant’s father, representing him, withheld portions of expert reports on the claimant’s dyslexia. This had come to light during the full merits hearing: 20. We are content to assume for present purposes that the Tribunal was entitled to find that Mr. Bayley senior's conduct in producing only "edited highlights" of Mrs. Pilkington's reports was not only wrong-headed (which Mr. Mulholland was very willing to accept) but constituted a deliberate decision to do something which he appreciated was wrong. We have some concerns about whether that finding may be too harsh, particularly in view of the factual errors identified at para. 13 above: cf. Mr. Mulholland's "point (c)". But we appreciate that the Tribunal had the advantage, which we have not had, of seeing Mr. Bayley senior in action over several days and of hearing him cross-examined. However, there is clear authority that even in a case of deliberate failures of disclosure the fundamental question for the Tribunal is whether a party's admitted conduct has rendered a fair trial impossible: see Bolch v Chipman [2004] IRLR 140, per Burton P. at para 55 (2) citing De Keyser Limited v Wilson [2001] IRLR 324 and Arrow Nominees Inc v Blackledge [2000] 2 BCLC 167. A further authority to similar effect which was not cited to the Tribunal (it had been decided but not at that point reported) is Blockbuster Entertainment Ltd. v James [2006] IRLR 630: see per Sedley LJ at para. 5 (p. 633).21. The Tribunal did indeed address that fundamental question, at para. 11.4 (see para. 17 above), and it held that a fair trial was not possible because of the impact of the withholdings on both the hearing which had already taken place on the issue whether the Claimant was disabled and on the hearing then in progress (though as we read it, it was the former on which it placed the greater weight). We do not believe that its conclusion in either respect is sustainable. We consider them in turn.22. As regards the preliminary issue, we can identify nothing in the withheld portions of P and Q which could have had a significant bearing on the experts' assessment on the questions of whether the Claimant suffered from dyslexia to such a degree as to constitute a disability. That is entirely to be expected. Mrs. Pilkington believed that the Claimant was severely dyslexic. That appeared from her technical appendix, and unsurprisingly the omitted sections of P and Q were entirely consistent with that view. It is hard therefore to see how they could have affected the views of either expert – whether Mr. Snodgrass, who relied on Mrs. Pilkington's findings as stated in P1 and Q1, or (still less) Dr. Wilson, who had conducted his own assessment. Mr. Peacock was unable to point to anything in the full P or Q that tended to undermine the conclusions in P1 and Q1 that the Claimant was severely dyslexic. Nor, more importantly, could the Tribunal: it went no further than saying that it was "a matter of conjecture" (see para. 10.2.8 quoted at para. 18 (3) above) and that the omissions must have had "some impact" though it could not say how much (para. 10.2.12, loc. cit.). That is insufficient While we fully accept that it was unnecessary for the Respondents to show that the outcome would certainly have been different if the withheld passages had been available, it was necessary to show at least that there was a real chance that it might have been. Otherwise there is no injustice and no risk to a fair disposal of the issues between the parties.23. As regards the reasonable adjustments issue, we have already expressed our view – in agreement with the Tribunal – that the withheld passages were potentially relevant, particularly because of the references to the Claimant's reluctance to accept that he needed help. But those passages were now before the Tribunal. They could be deployed in evidence and used as the basis of cross-examination. The only prejudice to a fair trial which Mr. Peacock was able to suggest was that the Respondents had decided not to seek evidence from Dr Wilson for the purpose of the reasonable adjustments hearing and that they might have taken a different decision if they had seen P and Q earlier. (This also seems to have been the point being made in the Tribunal in the garbled passage from para. 10.2.11 of the Reasons quoted at para. 18 (3) above.) We are unimpressed by this point. It is hard to see what Dr Wilson, from a specifically medical expertise, could have added to the points that could be made from P and Q themselves. But in any event the Respondents had had Q since June and had appreciated its significance since early September. If they had wanted to call Dr Wilson they had ample opportunity to do so.24. Accordingly we believe that both the bases for the Tribunal's view that a fair trial was impossible are flawed. Even granted that Mr. Bayley senior had behaved deplorably, no irreparable damage had been done. We fear that the Tribunal allowed its strong (arguably over-strong) disapproval of the way that Mr. Bayley senior had conducted himself to obscure a clear assessment of what actual harm had been done. Rule 37(1)(c)[73]In deciding whether to strike out a party’s case for non-compliance with an order under rule 37(1)(c), we must have regard to the overriding objective set out in rule 2 of seeking to deal with cases fairly and justly. That requires us to consider all relevant factors, including: - the magnitude of the non-compliance - whether the default was the responsibility of the party or his or her representative - what disruption, unfairness or prejudice has been caused - whether a fair hearing would still be possible, and - whether striking out or some lesser remedy would be an appropriate response to the disobedience. Weir Valves and Controls (UK) Ltd v Armitage [2004] ICR 371, EAT. In that case the EAT found that a Tribunal had erred in striking out an employer’s response for failure to comply with an order for simultaneous exchange of witness statements. The employer had not in fact taken any unfair advantage, the claimant was not prejudiced and a fair trial was still possible. Even if there had been unfairness the Tribunal had power to exclude all or part of a witness statement if it was proportionate to do so. Disclosure obligations[74]Rule 31 of the Tribunal Rules 2013 gives an employment tribunal a specific power to order ‘any person in Great Britain to disclose documents or information to a party (by providing copies or otherwise) or to allow a party to inspect such material as might be ordered by a county court or, in Scotland, by a sheriff’.[75]Standard disclosure is governed by rule 31.6 CPR and requires a party to disclose:(a) the documents on which he or she relies, and(b) the documents that adversely affect his or her own case, adversely affect another party’s case or support another party’s case.[76]The effect of rule 31 is that the Tribunal's powers in respect of disclosure are as set out in CPR Pt 31. CPR PD 31 contains very helpful and clear statements of the principles which should be applied in relation to disclosure in order to achieve a fair disposal of the issues between the parties. It is not open to a tribunal to order disclosure of documents which would not be disclosable under the CPR. The test for standard disclosure under r.31.6 is not one of relevance. The test was whether an order for discovery was "necessary for fairly disposing of the proceedings”. Santander UK plc and ors v Bharaj [2021] ICR 580, EAT. Submissions Respondent’s submissions[77]After his oral submissions and to make sure that the Tribunal and Ms Andrews understood fully the ambit of the new strike out application(s), we asked Mr Sheehan to reduce the application to a written summary of all the applications and he produced the following account: The Respondent relies upon the following rules 1. Rule 37(1)(b), “that the manner in which the proceedings have been conducted by or on behalf of the respondent (as the case may be) has been scandalous, unreasonable or vexatious.” For the avoidance of doubt, the Respondent says that the conduct set out below was scandalous, unreasonable and vexatious, and relies upon each in the alternative. 2. Rule 37(1)(c), “for non-compliance with any of these Rules or with an order of the Tribunal”. The Respondent relies upon the following Rules, orders and directions of the Tribunal 3. The order of Employment Judge Davidson dated 20 June 2022 (‘the First Order’). 4. The order of Employment Judge Burns dated 16 December 2022 (‘the Second Order’). 5. The order of this Tribunal (Employment Judge Joffe, Mr Ashby, and Mr Brione), (‘the Third Order’). The Respondent relies upon the following conduct 6. The Claimant’s late disclosure of the recording of the probationary meeting between the Claimant and Kitty Brown on 26 August 2021, which took place on 28 February 2023. The Respondent says that this is unreasonable, vexatious and scandalous conduct, and that it is a breach of paragraphs 12 and 13 of the First Order, paragraph (ii) of the Second Order, and paragraph 50 of the Third Order. 7. The Claimant’s extensive amendments to her witness statement, which go beyond what was permitted by the Tribunal, which impermissibly adds new evidence, which repeat contents of the transcript of the covert recording of 26 August 2021 and which reply to the evidence of the Respondent’s witnesses. The Respondent contends that this is unreasonable, vexatious and scandalous conduct, and that it a breach of paragraph 20 of the First Order and paragraphs 52 and 53 of the Third Order. 8. The Claimant’s inclusion of handwritten notes within the supplemental bundle, which are incomplete transcripts of undisclosed covert recordings. The Respondent contends that this is unreasonable, vexatious and scandalous conduct, and that it demonstrates a breach of paragraphs 12 and 13 of the First Order. 9. The Claimant’s non-disclosure of any and all other covert recordings as she possesses, the extent of which are still unknown to the Respondent but which the Respondent contends must at least include recordings of all three probationary meetings. The Respondent says that this is unreasonable, vexatious and scandalous conduct, and that it is a breach of paragraphs 12 and 13 of the First Order and of paragraph (ii) of the Second Order. 10. The Claimant’s inadequate medical evidence. The Respondent contends that this is unreasonable conduct and that it is a breach of paragraph 56 of the Third Order.[78]In his oral submissions, Mr Sheehan’s emphasis was very much on the effects of the claimant’s disclosure of the transcript and recording of 26 August 2021.[79]That recording showed that, contrary to the evidence in Ms Brown’s witness statement, the claimant had referred to the impairments which have been found to be a disability at that meeting. Ms Brown would be forced to alter her evidence mid trial and her recollection would be called into question more generally. This was unfair to the respondent as the situation would not have arisen if Ms Brown had had the opportunity to refresh her memory at an earlier stage. The claimant had achieved that outcome by a blatant and deliberate breach of the Tribunal’s unambiguous direction.[80]Mr Sheehan pointed out that the transcript of the 26 August 2021 recording was largely identical to the handwritten notes written on pages of a diary earlier disclosed by the claimant in her supplementary bundle (but not earlier). He said that this suggested that she had written this and other notes in the diary to obscure the fact that they were transcripts of audio recordings. It seemed highly likely that there were more covert recordings, particularly of significant meetings such as the September 2021 probation meeting and the further meeting on 26 August 2021 about a change to her working hours, which the claimant had not disclosed. He submitted that the likelihood was that the claimant had cherry picked those recordings which she considered assisted her case.[81]Mr Sheehan pointed out that the claimant’s disclosure obligations had been made very clear to her in orders and that her own long disputes about disclosure showed she understood disclosure obligations and was engaged with the disclosure process. The fact that she referred to the transcripts in her witness statement showed that she was aware of her obligation to disclose them.[82]The claimant’s correspondence in which she introduced the recording showed what was intended. Although the recording was initially proffered as an opportunity for Ms Brown to refresh her memory, the later reference to Ms Brown having her credibility ‘in tatters’ showed what the claimant was seeking to achieve in disclosing the recording and transcript mid-way through the full merits hearing. He submitted that the claimant had achieved that outcome by misusing the rules of the Tribunal and that her conduct was an abuse of process. In addition, the claimant was still threatening to make use of the transcript of the November 2021 meeting which the Tribunal had expressly ordered should not be referred to.[83]Mr Sheehan made further submissions about the complexion the transcript put on the handwritten notes only disclosed in the supplementary bundle The handwritten notes for 26 August 2021 were not only clearly a transcription of the recording, they were also only a partial transcription. The part transcribed was the part the claimant would have perceived was helpful to her in that it was the part where she referred to her impairments, She had not included the parts of the meeting where performance concerns were discussed with her, passages which Mr Sheehan submitted supported the respondent’s case. The claimant was attempting to pass off as contemporaneous notes of the meeting a subsequently prepared partial transcription of a recording of that meeting.[84]Looking through that lens at other handwritten notes in the claimant’s supplementary bundle, it seemed likely that the handwritten notes relating to the 2 November 2021 meeting were also a partial transcription of the recording the claimant said she had made of that meeting. It was impossible without the recording to say what had been suppressed from the transcription but it was also evidently incomplete.[85]Mr Sheehan submitted that the claimant had tried to include only material which advantaged her and had sought to sneak the transcripts in under the guise of handwritten notes. The parties could not be said to be on an even footing given the claimant’s approach.[86]On the subject of the claimant’s amended witness statement, Mr Sheehan said that she had gone far beyond the Tribunal’s order in introducing new evidence, some of which was explicitly in response to the respondent’s witness statements. She also included material which was directly taken from the transcript of the recording of the 26 August 2021 meeting.[87]Mr Sheehan said that it would not be fair for the Tribunal to consider this statement, which had been produced by amendments the Tribunal had ordered the claimant not to make, after she had seen the respondent’s witness statements and heard the oral evidence of Ms Jones.[88]Mr Sheehan submitted that, because of the claimant’s failures to comply with directions, there was now so much wrong with the hearing and so much prejudice to the respondent, that it was not possible to repair the damage and have a fair trial. Mr Sheehan initially submitted in reliance on Croma Vigilant that the question as whether a fair trial was possible in the three day trial window but later relied on a submission that a fair trial was no longer possible at all.[89]On the subject of the medical evidence, Mr Sheehan said that the claimant had not attempted to improve on the evidence initially provided, after receiving the letter from the GP but did not press the application under this head with any force. Claimant’s submissions[90]On the subject of the medical evidence, Ms Andrews said that the Tribunal had not in fact granted a postponement on the last occasion and that the purpose of requiring the medical evidence had been in order to ascertain a prognosis and the claimant’s fitness for future hearings. The claimant had done everything she could to comply with the Tribunal’s order and could not be blamed for her GP’s failure to answer all of the questions asked.[91]On the subject of the amendments to the witness statement, Ms Andrews said that she did not agree that the order allowing for some revisions of the witness statement was unambiguous although she did not expand on that submission. She said that in any event the correct course would be to strike out those parts of the witness statement which went beyond the order rather than striking out the claimant’s case.[92]Ms Andrews spent some time explaining why the transcript was disclosed and I asked her why the claimant had not disclosed the recordings / transcripts at the appropriate time in the disclosure process. Ms Andrews did not have instructions on the point when I first raised it with her. She objected to the request and I made clear to her that it was an invitation and not an order for the claimant to explain what had occurred.[93]We had Ms Andrews’ thorough and helpful skeleton on the morning of 19 May 2023. She summarised the relevant law in respect of rule 37(1)(b) and (c) and submitted that the respondent had not argued that the claimant’s conduct was scandalous or vexatious as defined in Bennet v London Borough of Southwark (scandalous) and A-G v Barker (vexatious).[94]Ms Andrews relied on Croma Vigilant for the proposition that unreasonable conduct was a ‘deliberate and persistent disregard of the required procedural steps’ which would probably exclude mere oversight or negligence. Negligent or reckless breaches should be considered under rule 37(1)(c). there must be an adequate basis for a Tribunal’s finding that there has been unreasonable conduct and we must identify the magnitude of the breach as part of our exercise in assessing proportionality.[95]Ms Andrews relied on this passage in Blockbuster: It takes something very unusual indeed to justify the striking out, on procedural grounds, of a claim which has arrived at the point of trial. The time to deal with persistent or deliberate failures to comply with rules or orders designed to secure a fair and orderly hearing is when they have reached the point of no return. It may be disproportionate to strike out a claim on an application, albeit an otherwise well-founded one, made on the eve or the morning of the hearing.[96]The skeleton recorded the history of the proceedings including some instructions taken from the claimant as to history of the proceedings and the reasons for deficiencies in her earlier disclosure. In brief there were references to the claimant’s other ongoing employment tribunal proceedings which had required her attention and caused stress and a flare up of her disability at the relevant times. It was said that the claimant had drip fed her own disclosure as she had had to pile up all her documents in her study after a leak at her home. She had found her diary over the Christmas period in 2022 when her husband was assisting her to go through the ‘mess caused by the leak’.[97]It was only when the claimant was preparing her statement in response to the unless order that she recalled the audio recording. Her focus was on the witness statement given the unless order. The transcript had to wait.[98]We had some discussion with the parties as to whether the claimant would be called to give evidence about these matters, but ultimately nether party requested that she do so. In the circumstances, the Tribunal did not require her to give evidence but there were some consequences in terms of the ambit of the findings we felt able to make.[99]Ms Andrews submitted that the way in which the new bases for strike out had been presented had been unreasonable. No notice of the applications had been given. The unreasonable behaviour of the respondent was something the Tribunal should bear in mind when considering the proportionality test. Furthermore, it was not open to the respondent to ambush the claimant with an application which required the claimant to have a day to prepare to respond to it and then argue that the trial window had been used up in support of a submission that a fair trial was no longer possible within the trial window.[100]If some unfairness accrued, the Tribunal could use its powers short of strike out to, for example, exclude all or part of a witness statement.[101]As to whether there had been breaches of disclosure orders. Ms Andrews argued that the history showed that both parties had failed to comply with their disclosure duties, the latest example being the respondent’s recent disclosure of the IHASCO document. Ms Andrews said that the disclosure of this document would require Ms Jones to be recalled in any event and so she could be asked questions about other matters,[102]Ms Andrews argued that the recording and transcript were not required to be disclosed as they did not meet the test for disclosure; they were not required for a fair disposal of the issues because the claimant had disclosed her handwritten notes of the meetings. Insofar as the notes did not cover the latter part of the meeting the essential issues raised in that part of the meeting were elsewhere recorded in the respondent’s notes of the meeting and the claimant was not disputing that they were raised.[103]Alternatively, the claimant had given disclosure within the meaning of the CPR by referring to the transcripts in her witness statement. The respondent could have asked for copies of the transcripts at that point.[104]The claimant’s instructions were that there were no other covert recordings and it was unreasonable for the respondent to suggest without evidence that there were further such recordings.[105]As to whether a fair hearing was possible, Ms Andrews said that the issue of the recording / transcript could have been dealt with by a different Judge as the claimant had requested but in any event the Tribunal were capable of appreciating that Ms Brown may have misremembered the 26 August 2021 meeting and not generalising about her credibility based on the difference between her witness statement and what she was now having to accept due to the disclosure of the recording / transcript.[106]If the Tribunal did consider that there was unfairness it should consider less draconian alternatives to strike out. It could refuse the application to admit the transcript, and permit Ms Brown to provide an updated statement. It could order a rehearing by a different tribunal. Only one witness had been heard and she would need to be recalled to deal with the IHASCO documents so only half a day would be wasted. She submitted that the respondent would benefit from a rehearing as Ms Jones would have the opportunity to improve on her evidence from the first occasion; she submitted Ms Jones was ‘wholly unbelievable’ on that occasion.[107]There were a number of disputes between the representatives during the course of submissions as to who had the right to reply to what in the other parties ‘submissions. We had sought to allow some flexibility in allowing further submissions, in part because the Tribunal had drawn to the parties’ attention the case of Bayley after Mr Sheehan’s submissions and in part to ensure that we had all of both parties’ relevant submissions. We were disappointed that the parties evidently viewed one another and the Tribunals’ efforts with suspicion.
Conclusions
[108]Although we considered that the respondent had behaved unreasonably in not giving the claimant advance notice of the additional grounds on which it was applying to strike out, we considered that ultimately the claimant had been given a reasonable opportunity to make representations on all of the grounds, in accordance with rule 37(2), in circumstances where it seemed to us to be in accordance with the overriding objective that we hear the application because of the Tribunal’s concerns that a fair trial might not be possible.[109]We considered first whether there were breaches of orders. If there were such breaches was there also unreasonable conduct? The medical evidence[110]The claimant had not complied with the letter of the order which required her to send to the respondent and the Tribunal the written answers provided by her medical practitioner. We were satisfied, however that she had done what she could to comply with the order but that ultimately it was not within her power to compel her GP to do more than he had done. The claimant’s revised witness statement[111]We did not accept that the order made was ambiguous. It set out very clearly what the claimant was permitted to do by way of revisions to her witness statement. We made it very clear that the purpose of allowing the amendments was to make the statement more comprehensible by the Tribunal. We made clear that the claimant was not to make further revisions as these could create unfairness in circumstances where the respondent had disclosed its own witness statements and one of its witnesses had completed her oral evidence.[112]We considered that the claimant, who is an educated woman, and Ms Andrews, who has legal training and acts as an advocate, would both have been entirely aware that the revisions went beyond what the Tribunal had ordered and that the breach of the order was deliberate. The claimant clearly considered that she had had insufficient time to draft her statement as a result of the unless order and was hoping that either the respondent would not complain or the Tribunal would simply allow the wider amendments she made. We considered that this behaviour was unreasonable. Disclosure issues[113]We were not in a position to make any findings that there were other recordings which had not been disclosed and we focussed on the recordings we knew about.[114]These recordings (and the claimant’s handwritten notes) were not disclosed on the original date for mutual disclosure. We bear in mind that both parties continued to disclose documents throughout the period up to and beyond exchange of witness statements. The breach of the order became significant in relation to the transcripts after witness statements had been exchanged.[115]The documents were clearly disclosable since they advanced the claimant’s case on points relating to knowledge of disability and potentially advanced the respondent’s case in relation to what was said about the claimant’s performance at that 26 August 2021 meeting. It was sophistry to suggest there was no failure to comply with disclosure orders after the handwritten notes were disclosed (late but before disclosure of witness statements). The handwritten notes did not purport to be transcripts of recordings and were radically incomplete. That failure of disclosure was not and could not be repaired by the existence of some limited handwritten notes disclosed by the respondent covering the same part of the meeting, as Ms Andrews submitted.[116]Our orders from the last occasion relieved the claimant of the obligation to disclose the recordings and transcripts. We made those orders, which neither party objected to at the time, because we were conscious that late production of recordings of disputed meetings was likely to produce possibly irreparable unfairness to witnesses who had provided statements and given oral evidence in ignorance of the existence of those recordings. The orders were very clear that it was not just recordings / transcripts of the 2 November 2021 meeting which were not to be referred to, but all recordings / transcripts.[117]What followed was the disclosure of the 26 August 2021 recording and transcript. Again this seems to us to have been a deliberate breach of our very clear orders. It was, it seems to us, disingenuous of the claimant to suggest that the recording was being disclosed in a neutral way to assist Ms Brown to refresh her memory.[118]Once the recording was disclosed, contrary to the order, as Mr Sheehan pointed out, the respondent had no option but to have Ms Brown correct the evidence in her witness statement. He and his instructing solicitors would not have been complying with their duties to the Tribunal had any other path been pursued. Excluding the transcript ceased to be a useful option.[119]It was submitted on behalf of the claimant that this mischief could have been avoided by a different employment judge considering whether the recording should be admitted and Ms Brown then being permitted to submit a new witness statement.[120]Even disregarding the significant additional burden on Tribunal resource, the proposal would have involved: - A different employment judge varying this Tribunal’s original order. No material change of circumstances was advanced which would make such a variation appropriate in any event; - Had the order been varied, the existing Tribunal would still have had to put out of its minds Ms Brown’s original statement and its divergence from any updated statement produced in response to a dispute about a recording and transcript. Unreasonable conduct[121]We did not consider that there was any unreasonable conduct in relation to the order for medical evidence.[122]In relation to the amendments to the witness statement, we considered that these were deliberate. It seemed to us that both the claimant and her representative would have been well aware that the amendments were not within the terms of the order. We considered this conduct to be unreasonable.[123]In relation to the breaches of disclosure orders, the account given by the claimant that she had forgotten about the recordings right up until the time she was preparing her witness statement was difficult to understand. These were important meetings and what was said at those meetings was of great significance to the claims. The claimant had taken the trouble to covertly record the meetings. She had either contemporaneously or more recently partially transcribed the meetings in handwriting in a diary. We were not invited to hear evidence from the claimant and in the absence of evidence, we do not consider that we can properly find that what the claimant told her representative is false, or that her behaviour was unreasonable up to that point in time. For similar reasons we do not feel able to conclude that there are other recordings which have been suppressed.[124]No explanation has been given of how the claimant came to make a partial transcription of at least the 26 August 2021 recording in the diary and then present it as simply ‘handwritten notes’.[125]What we consider was deliberate on the part of both the claimant and her representative was the decision to disclose the transcript in breach of this Tribunal’s case management orders. In the circumstances described, we consider that that behaviour was unreasonable. Is a fair trial still possible?[126]Under both subrules, we have to consider very carefully the magnitude of the risk that a fair trial is not possible, whether strike out is proportionate and whether there are ways of avoiding the unfairness short of strike out.[127]The magnitude of the non compliance is significant both in relation to the witness statement and the transcript. Both orders were made in the presence of the claimant and her representative for reasons which were explained at the time. In both cases we consider it is both the claimant and her representative who are responsible.[128]We considered carefully the damage or potential damage created by disclosure of the recording and transcript in breach of our order.[129]It is not only the credibility of Ms Brown which was put in issue by disclosure of the recording and transcript. When Ms Jones gave her evidence, she was challenged on the basis of a recording which we did not understand was in evidence. The suggestion was that her evidence was going to be shown to be untrue by a document which would be produced later.[130]This was clearly entirely unfair to Ms Jones and was the reason we ordered that there be no further references to recordings or transcripts. The situation was that, in order to be fair to the claimant, we had made time for her to obtain further evidence of her ill health and had in the end postponed her evidence to another occasion because of her ill health. To be fair to the respondent, who informed us that Ms Jones’ personal circumstances (which were explained to us) meant that they might feel unable to ask her to attend on a future occasion, we heard the evidence of Ms Jones. In the difficult circumstances of this case, we concluded that it was overall fairest to both parties to have a part heard hearing. A corollary of that is that there would be unfairness to Ms Jones and the respondent if the claimant was allowed to produce or refer to previously undisclosed documentary evidence which impugned the evidence given by Ms Jones.[131]In breach of the order we made as to the admission of recordings and transcripts, the claimant disclosed the transcript of a meeting that Ms Jones was not involved in, the 26 August 2021 meeting.[132]The disclosure of that transcript caused the respondent’s representatives to compare the transcript with handwritten notes which were in the claimant’s supplementary bundle. That comparison showed that the handwritten notes written on diary pages spanning that date appeared to be a partial transcription of the recording made by the claimant of the meeting.[133]As Mr Sheehan pointed out, the disclosure of the recordings after Ms Brown had produced and the Tribunal had read her witness statement meant that Ms Brown would have to resile from evidence in her witness statement, such as the evidence she gave that the claimant had never referred to her impairments.[134]The Tribunal panel is well aware of the reflections of Leggatt J in Gestmin SGPS SA v Credit Suisse [2013] EWCA 3560 (Comm): While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose:(1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and(2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate. Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of so-called 'flashbulb' memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description 'flashbulb' memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory). Memory is especially unreliable when it comes to recalling past beliefs. Our memories of past beliefs are revised to make them more consistent with our present beliefs. Studies have also shown that memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces. Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events. It is not uncommon (and the present case was no exception) for witnesses to be asked in cross-examination if they understand the difference between recollection and reconstruction or whether their evidence is a genuine recollection or a reconstruction of events. Such questions are misguided in at least two ways. First, they erroneously presuppose that there is a clear distinction between recollection and reconstruction, when all remembering of distant events involves reconstructive processes. Second, such questions disregard the fact that such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth. In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.[135]Even bearing in mind all of that wisdom on the subject of memory and oral evidence, we were troubled by the unfairness to a witness of a late disclosure of this kind. It would be difficult for the panel, presented with the various disputes of fact between the two parties, not to have in mind the fact that Ms Brown had at best failed to remember some significant aspects of this meeting on 26 August 2021. Although Ms Brown would no doubt have also been cross examined on the respondent’s response, which denied knowledge of the claimant’s impairments, and might in any event have given evidence that she had not in fact recalled the reference to the impairments until she heard the recording / saw the transcript, she would at least have had the opportunity in live evidence to establish the genuineness or otherwise of her failure to remember the claimant discussing her impairments, without having produced a witness statement denying the discussion occurred. There is a difference between being challenged on a position in a pleading and being challenged on a position in a pleading in tandem with the evidence in your witness statement. In relation to matters in the case where there was no documentary record of any kind, we would now be in difficulty putting out of our minds Ms Brown’s continuing failure to remember these matters being discussed in the 26 August 2021 meeting.[136]There was a further effect of the disclosure of the transcript. On the last occasion, as we have said, we had a suggestion in cross examination that Ms Jones’ evidence was inconsistent with a recording of the 2 November 2021 meeting. Without more flesh on that suggestion, we felt able to assess her evidence of that meeting on the basis that there was no incontrovertible documentary evidence which undermined it. Ms Jones was cross examined to the effect that the claimant had named her impairments at the meeting and said that they had been affecting her for over 1.5 years. Ms Jones denied that that was the case.[137]The disclosure of the 26 August 2021 recording and transcript altered the impression the Tribunal had as to the provenance of the claimant’s handwritten notes in the bundle. It now appeared that the notes of the 2 November 2021 meeting might also be a partial transcript of a recording of the meeting rather than a note made at the time or subsequently purely from the claimant’s memory. That inevitably affected the Tribunal’s impression of her oral evidence . Ms Jones could have been recalled but she would then have been exposed to questioning about the relationship between evidence she gave months earlier and such further evidence as she gave at the resumed hearing. Damage to her credibility would already have been done by her earlier evidence.[138]The situation as it appeared to the Tribunal was that both of the respondent’s witnesses had been put in a position where their witness statements had been prepared on an erroneous basis. Doing our very best, we struggled to see how we could prevent our perception of the respondent’s witnesses’ evidence being affected. At best, they would have to say that their memory of key meetings was inaccurate. In a case where much was likely to turn on which version of disputed events we accepted, and where we would be required to find some material facts on the basis of oral evidence only, it was difficult to see how the respondent could now have a fair hearing. This situation had come about because the claimant had sought to introduce a transcript in direct contravention of a Tribunal order that she should not do so, having failed, whether deliberately or accidentally, for many months to disclose the recordings at a point when they could have been dealt with fairly.[139]We considered what options there were short of strike out. One possibility which was mentioned by the claimant’s representative was that we could direct that the entire full merits hearing be started afresh in front of a new tribunal. We would have had to list for no less than four hearing days and would be looking at a hearing probably no earlier than January 2024. There would be further costs to the respondent.[140]We bore in mind that the strike out application which seemed to us to have merit (that relating to the claimant’s conduct in relationship to recordings and transcripts) was only made on the morning of the hearing and the loss of the hearing time set aside for the balance of the full merits hearing cannot be laid entirely at the claimant’s door. We did not consider solely whether a fair hearing was possible within the existing trial window but whether one was possible at all. We concluded, for the reasons explained above, that it was not possible to have a fair hearing in front of the existing tribunal panel at all. Excluding transcripts would make no difference since we were aware of some at least of their contents.[141]We had to consider whether there was a proportionate alternative to strike out. So far as the claimant’s witness statement was concerned, it could have been amended to remove the sections which went beyond the order. A fair trial was not impossible and, had this been the only issue, we would have considered ordering sections be removed from the witness statement.[142]The claimant suggested that an alternative to strike out was to direct that the hearing be recommenced in front of a fresh tribunal. We had to consider whether there could be a fair trial in those circumstances and whether that would be proportionate.[143]Listing the matter in front of a new tribunal would have required new dates even if the respondent had made its strike out application in good time so that the application could have been responded to and decided on the first day of the listing. We could not think of any sensible way in which a fresh tribunal could approach the matter without being aware of this tribunal’s orders, which would themselves reveal the issues which in our view are preventing a fair trial being possible.[144]We bore in mind also the following matters: There would be not insignificant added costs for the respondent; By the time the matter could be relisted for a fresh tribunal, the evidence would be a full year older and less cogent than it was in January 2023; The proceedings would be hanging over the respondent’s witnesses; Resources would be diverted from other tribunal users.[145]These are the consequences of the deliberate decision by the claimant to produce the recording and transcript in deliberate disobedience to Tribunal orders.[146]Also of some concern to us was the fact that the claimant had on several occasions, as it seemed to us, deliberately disregarded clear orders – in relation to the content of her witness statement and in relation to the disclosure of the transcript. So a subsidiary but significant concern which we weighed in the balance was a concern that the claimant would continue to disregard orders in a way which might cause further unfairness. There was no good or clear explanation as to why the claimant had acted in this way.[147]We therefore reluctantly arrived at the conclusion that, on these particular facts, the unusual course of exercising our discretion to strike out the claimant’s claims was appropriate. There was no alternative course which repaired the unfairness and was otherwise in accordance with the overriding objective.