CR v Ravenscroft Park Preparatory School and others: 2203864/2022

EMPLOYMENT TRIBUNALS

Case No 2203864/2022

Between

CRClaimant

Ravenscroft Park Preparatory School and othersRespondent

Before

Employment Judge J Galbraith-Marten

Mr. R. Ross (instructed by Counsel) for claimant

Ms. A. Doble (instructed by Counsel) for respondent

Date 12 December 2023

JUDGMENT

[1]The claimant’s application to amend her claim to include a victimisation complaint as set out in her application dated 30 November 2022 is accepted.

[2]The claimant’s application for an anonymity order is refused.

[1]The claimant’s application to amend her claim to include a victimisation complaint as set out in her application dated 30 November 2022 is accepted.

[2]The claimant’s application for an anonymity order is refused.

REASONS

[1]The judgment was promulgated on 2 June 20223 and the claimant requested written reasons by email dated 16 June 2023.

[2]The claimant was engaged by the respondent as a supply teacher on 1 January 2022 and her engagement ended on 28 January 2022. The claimant pursues disability discrimination complaints namely, failure to make reasonable adjustments and discrimination arising from disability and a breach of contract claim. She presented her claim form on 12 June 2022. The respondent denies the claims but accepts the claimant was a disabled person at the relevant time.

[3]The hearing took place by video and the Tribunal was provided with a 72 page redacted bundle. The claimant separately submitted 3 additional unredacted PDF documents, but she did not give evidence. Issues

[4]This was the third Preliminary Hearing in this matter, and it was listed to determine the following: -• Whether the Tribunal has jurisdiction to consider the claimant’s claim of disability discrimination and in particular whether the claimant was in “employment” as defined in section 83(2) of the Equality Act 2010 as she contends or genuinely self-employed as the respondent contends;

• If appropriate to consider the claimant’s application to amend her claim to include a claim of victimisation and;

• If appropriate, whether to grant the claimant’s application for an anonymity order.

[5]At the commencement of the hearing there was a discussion regarding the issues. The respondent conceded the claimant is a worker for the purposes of her discrimination complaints but does not concede that she was an employee.

[6]The claimant suggested she was pursuing both a breach of contract claim and in the alternative a claim for statutory notice pay on the basis she had been employed for more than one month. However, she then accepted she had not been employed for more than one month. The alternative claim for statutory notice pay is not brought but the claimant continues to pursue a breach of contract claim in respect of one term’s payment in relation to the termination of her engagement with the respondent on 28 January 2022 in accordance with her contract.

[7]The Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 regulation 7 is engaged if the claimant was an employee so that issue remains live in the proceedings. However, the parties were not in a position to deal with that substantive issue and both agreed the issue of whether the claimant was an employee for the purposes of the breach of contract claim should be dealt with at the final hearing and that is reflected in the Case Management Order of 1 June 2023 and issued separately.

[8]Therefore, only the claimant’s two applications remained. The hearing was listed as a public Preliminary Hearing and the claimant’s counsel requested the hearing be converted to a private hearing pending the determination of the claimant’s anonymity order application.

[9]Rule 56 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013, Schedule 1 provides that Preliminary Hearings shall be conducted in private, except where the hearing involves a determination under rule 53(1)(b) of a preliminary issue. Rule 53(3) defines a preliminary issue as any substantive issue which may determine liability. As the substantive issue of status could not be dealt with, the preliminary hearing could be heard in private, and the Tribunal agreed to the claimant’s request. Amendment Application The Application

[10]The claimant sought to amend her claim to include a victimisation complaint. This was raised by the claimant at the Preliminary Hearing on 7 November 2022 and supported by written particulars supplied on 30 November 2022. The protected act is the claimant’s grievance dated 22 April 2022 and she alleges three detriments;(a) the respondent altering the reason for her termination on 29 April 2022,

(b) Ms. Bal’s communications with her on 22 & 23 June 2022 and,

(c) the discovery of a new complaint about her within the documents supplied by the respondent as part of a subject access request that she received on 23 June 2022. Submissions

[11]The claimant submitted the Tribunal must be mindful of the “Selkent” principles, but they are not a checklist, and a series of factors must be considered by the Tribunal to determine the balance of injustice or hardship. Although the amendment could have been made earlier that is the case in almost all amendment applications. The Tribunal should exercise its discretion to grant the amendment given the factual and temporal connection with the existing claim. If the Tribunal did not grant the amendment the claimant would have no opportunity to enforce her statutory right and the only prejudice to the respondent would be the requirement to amend its defence.

[12]The respondent offered no submissions in respect of the amendment application.

The Law

[13]In relation to amendment applications, the leading authority is Selkent Bus Company Ltd v Moore

[1996] ICR 836

. In deciding whether to exercise its discretion to grant leave for an amendment, the Tribunal should consider all the circumstances and balance the injustice or hardship which would result from granting the amendment or the refusal to amend. The factors to be considered include the nature of the amendment, the applicability of the statutory time limits, and the timing and manner of the application to amend. However, this is not a checklist.

[14]In Vaughan v Modality Partnership

[2021] ICR 535

, EAT the Employment Appeal Tribunal emphasised the core test in an amendment application is the balance of injustice or hardship in allowing or refusing the application.

[15]In Chaudhry v Cerberus Security and Monitoring Services Limited

[2022] EAT 172

, the Employment Appeal Tribunal suggested a two-step approach to amendment applications. The first stage is identifying the amendment sought and the second stage is balancing the injustice or hardship of granting or refusing the amendment considering all the relevant factors including those referred to in Selkent.

[16]The Presidential Guidance on General Case Management for England and Wales also states there is a distinction between applications to amend which add new claims essentially out of facts that have already been pleaded and applications to add new claims which are entirely unconnected with the original claim. The Tribunal must consider the entirety of the claim form.

Conclusion

[17]Following the guidance in Chaudhry the amendment to the claim has been clearly identified and set out in writing. The claimant’s application cannot be said to be unconnected with her original claims and she makes specific mention of victimisation at paragraphs 2 and 42 of her original particulars of claim. There is also specific reference to the grievance in the claim form. However, the events on 22 & 23 June 2022 the claimant relies on in relation to her victimisation complaint post-date the submission of the claim form on 12 June 2022.

[18]The Employment Appeal Tribunal in Prakash v Wolverhampton City Council EAT 0140/06 held there was no reason in principle why a cause of action that accrued after the presentation of the original claim form should not be added by amendment if appropriate.

[19]In relation to time limits, the complaint regarding the grievance outcome is in time but the other two complaints are out of time. In Ali v Office of National Statistics

2005 IRLR 201

the Court of Appeal recognised when new complaints are added by way of amendment, that are so close to the original complaint, justice requires that they are allowed even if out of time.

[20]This case is still at the preliminary stage and the claimant has been unrepresented. The claimant submitted the balance of injustice or hardship would be against her if the amendment was not allowed and the respondent did not oppose the application.

[21]In the circumstances and balancing the injustice and hardship, the Tribunal finds the injustice and hardship would be against the claimant if the amendment was not granted and exercises its discretion to grant the amendment.

[22]In relation to the victimisation complaints that took place on 22 & 23 June 2022, and for the avoidance of doubt, the Tribunal extends time on the basis that it is just and equitable to do so. Anonymity Order Application Application

[23]By email dated 7 November 2022 the claimant made an application for an anonymity order under Rule 50(3)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1. The claimant’s application was based on three principal reasons as follows: - I substantiate my request, with reference to The European Convention on Human Rights, Articles 2, 3, 6 and 8. I am a survivor of domestic abuse, known to both the Metropolitan Police and Surrey Police, and appropriate authorities and services. The cases involve not only abuse, but a substantial campaign of in-person and online stalking and harassment over some years. As a result, I have come to limit my activities, people I communicate with and continuously proceed daily life with extreme caution. I am currently selling my property to change address and have further security measures in place, as well as using a nickname publicly to minimise the possibility of ‘being found’. I have no social media presence and have actively pursued removing traces of my existence from the internet. As attached, I am still being supported by my local domestic abuse organisation, and I continue to receive medical related intervention. The primary reason for my application is that the address of the Respondent and therefore my recent workplace, is in exceptionally close proximity to my family home in a 1 mile radius. This was an intentional move to ensure I had a support network on returning to work and closer accommodation on working days. However, I have been made aware that proceedings and reporting are now very public and traceable via search engines. By publicising my name with the Respondent, a search with my unique surname can allow my perpetrator and associates to correctly deduce I regularly remain in the area. This not only puts myself in danger, but that of the other members of my family who reside at the owned properties, including my elderly and frail grandparents. Secondly, my claims cannot be heard without discussing the above, but also the mental and physical impact this has had - which will include incredibly sensitive, personal medical information including suicidal ideation and PTSD. There is a direct correlation to my claims and also the defence the Respondent reports to be making. It will be impossible to separate the information and still fairly administer proceedings. Furthermore, mental health is still heavily stigmatised, and history has shown that having information relating to such in the public domain, particularly with the changes this September to Keeping Children Safe in Education, will see me being discriminated further, at consideration of any applications I make for employment despite it being unlawful. It should always remain my decision as too if and when I make the admission of disability to any prospective or new employer. My claims in this case shows that asking for ‘understanding’ is not always listened to. Without anonymity, I will not feel able to share full evidence or documentation, which will impede on the Tribunal’s overriding objective and other Articles in the ECHR, as well as the high possibility I will experience substantial additional distress during the proceedings to due anxiety and concerns in regard to my name and my safety. I do not consider the principle of open justice will be hindered, if reporting of the case at the very least, anonymises my name to preserve my identity and deeply personal matters from being easily accessible to those who would intentionally take advantage and cause me substantial harm or further discriminate me in moving on with my life from such painful events. Documents

[24]Your Sancturary provided a letter dated 9 September 2022 and that was included in the bundle at page 63. Your Sanctuary confirmed in their opinion the claimant is a survivor of domestic abuse and she received support in 2015, 2016 and again from March 2022 onwards. A letter from Mind Matters dated 20 September 2022 was also included in the bundle confirming the claimant was in receipt of ongoing treatment for depression.

[25]The claimant also supplied additional documentation in 3 PDF documents, and this was information from Surrey Police. The documents confirmed the claimant reported harassment involving her ex-partner, his sister and/or friends on 31 May 2015 (to the Met police), 30 July 2015 and on 15 October 2015 to Surrey Police. A further report was made on 7 August 2016 regarding the claimant being watched on social media. Submissions

[26]The claimant submitted she has been subject to a lengthy campaign of online and in person stalking and as a result has limited her activities. The claimant avoids social media, uses a nickname in public and has sought to remove all traces of herself from the internet. As the respondent’s premises is in close proximity to where the claimant lives, that would provide an opportunity for those who are stalking her to track her down. There is also the potential her name could be obtained via the court serve platform in future listings that would reveal her name and area of residence.

[27]The claim also relates to sensitive information regarding the claimant’s medical issues and disabilities and disclosure of that information could impede her ability to gain future employment. Furthermore, if an anonymity order is not granted, the claimant would not feel able to provide her evidence fully as she would have heightened concerns regarding her safety and those whom she lives with.

[28]The claimant asserted that her article 5 and article 8 rights specifically are engaged and referred to A v Secretary of State for Justice 2019 ICR D1, EAT and X v Stevens

[2003] IRLR 415

. In the circumstances, she requested that her name is anonymised in the proceedings so that she cannot be identified.

[29]The respondent offered no submissions and took a neutral stance in respect of the application.

The Law

[30]Rule 50 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013, Schedule 1 states: - 50 Privacy and restrictions on disclosure(1) A Tribunal may at any stage of the proceedings, on its own initiative or on application, make an order with a view to preventing or restricting the public disclosure of any aspect of those proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person in any circumstances identified in section 10A of the Employment Tribunals Act.

(2) In considering whether to make an order under this rule, the Tribunal shall give full weight to the principle of open justice and to the Convention right to freedom of expression.

(3) Such orders may include – (b) an order that the identities of specified parties, witnesses or other person referred to in the proceedings should not be disclosed to the public, by use of anonymisation or otherwise, whether in the course of any hearing or in its listing or in any documents entered on the register or otherwise forming part of the public record;

[31]The European Convention on Human Rights provides: Article 5 (Right to liberty and security) 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribe by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervisor his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of sound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been a victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation. Article 8 (Right to respect for private and family life) 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as it in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Article 10 (Freedom of Expression) 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinion and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinems enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interest of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. These rights were incorporated into UK law by the Human Rights Act 1998.

[32]The Employment Appeal Tribunal confirmed in British Broadcasting Corporation v Roden

[2015] ICR 985

, EAT the principle of open justice is of paramount importance and derogations from it can only be justified when strictly necessary as measured to secure the proper administration of justice as set out in paragraphs 21 to 26 of the Judgment:21. An order under Rule 50 interferes both with the principle of open justice and the right to freedom of expression. The principle of open justice was considered recently by the Supreme Court in A v British Broadcasting Corporation

[2014] 2 WLR 1243

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

[2012] EWCA Civ 420

;

[2013] QB 618

, para 1, society depends on the consent of the people governed, the answer must lie in the openness of the courts to public scrutiny.”

22. The principle of open justice is accordingly of paramount importance and derogations from it can only be justified when strictly necessary as measured to secure the proper administration of justice.

23. Where anonymity orders are made, three Convention rights are engaged and have to be reconciled. First, Article 6 which guarantees the right to a fair hearing in public with a publicly pronounced judgment except where to the extent strictly necessary publicity would prejudice the interests of justice. Secondly, Article 8 which provides the qualified right to respect for private and family life. Thirdly, Article 10 which provides the right to freedom of expression, and again is qualified.

24. Lord Steyn described the balancing exercise to be conducted in a case involving these conflicting rights in In Re S (A Child) (identification: restrictions on Publication)

[2004] 3 WLR 1129

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

25. The paramountcy of the common law principle of open justice was emphasised and explained in Global Torch Ltd v Apex Glocal Management Ltd

[2013] EWCA Civ 819

where Maurice Kay LJ referred to R v Legal Aid Board, ex parte Kaim Todney

[1999] QB 966

at 977 and Lord Woolf MR’s holding that the object of securing that justice is administered impartially, fairly and in a way that maintains public confidence is put in jeopardy if secrecy is ordered because (among other things): “It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely… Any interference with the public nature of court proceedings is therefore to be avoided unless justice requires it.”

26. Having referred to the question to be asked when seeking to reconcile these different rights as firmed by the Supreme Court in Guardian News and Media Ltd at [52] (Lord Rodger) as ‘whether there is sufficient general, public interest in publishing a report of the proceedings which identifies M to justify any resulting curtailment of his right and his family’s right to respect for their private and family life’, Maurice Kay LJ set out the relevant passage from the Practice Guidance (Interim Non-disclosure Orders) given by Lord Neuberger including as follows: “The grant of derogations is not a question of discretion. It is a matter of obligation..” (paragraph 11); The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence…” (paragraph 13)”

[33]The burden of proof is on the claimant, and this requires clear and cogent evidence as confirmed by the Employment Appeal Tribunal in Fallows v News Group Newspapers Ltd

[2016] ICR 801

, EAT.

[34]The Employment Appeal Tribunal in A v Secretary of State for Justice 2019 ICR D1, EAT overturned a Tribunal’s decision to revoke an anonymity order as the Tribunal had failed to properly consider the convention rights of a thirdparty.

[35]In X v Stevens

[2003] IRLR 411

the Employment Appeal Tribunal granted a restricted reporting order overturning the Tribunal and relating to a person’s transexual status. In X v Y

[2021] ICR 147

, EAT a claimant brought claims for unpaid wages and holiday pay. The Judgment referred to other highly sensitive matters including the claimant’s mental health. The EAT emphasised that not all cases dealing with sensitive mental health issues must be anonymised.

[36]In A v Burke and Hare

[2022] IRLR 139

the Employment Appeal Tribunal held that the principle of open justice assumes that all the details in a case should remain public unless there is some identifiable injury to the claimant’s convention rights. The Tribunal must balance whether granting an anonymity order to protect the claimant’s convention rights or in the interests of justice outweighs the principle of open justice and freedom of expression.

Conclusion

[37]The claimant presented information relating to domestic abuse reports in 2015 and 2016. The claimant presented no evidence regarding any continuing or ongoing harassment or stalking either online or in person nor any police involvement or involvement of any other safeguarding agency that requires her identity to be protected at this time and in respect of these proceedings.

[38]In terms of the disclosure of the claimant’s physical and mental disabilities and her ability to gain future employment. The respondent has conceded the claimant is a disabled person and the Tribunal is not persuaded there are exceptional circumstances or other highly sensitive issues that apply to the claimant which do not apply to many claimants who pursue disability discrimination claims in the Tribunal.

[39]Thirdly, the claimant provided no information as to why she would be unable to give her fullest evidence in these proceedings without an anonymity order. The claimant did not give oral evidence or present any other evidence to support her assertion.

[40]In the circumstances, the Tribunal balanced whether granting an anonymity order to protect the claimant’s convention rights (and specifically her article 5 and 8 rights), outweighed the principle of open justice and article 10 freedom of expression. As the claimant did not present clear and cogent evidence to justify that it was strictly necessary to derogate from the principle of open justice on this occasion, the balance is in favour of open justice and article 10 and accordingly the claimant’s application for an anonymity order fails.

Background

[1]A Preliminary Hearing took place on 1 June 2023 to determine three issues;(a) whether the claimant was in employment for the purposes of her disability discrimination claim, (b) to consider the claimant’s application to amend her claim to include a victimisation complaint and, (c) to consider whether to grant the claimant’s application for an anonymity order.

[2]The first issue did not require determination, but the Tribunal determined issues (b) & (c). The Tribunal granted the claimant’s application for an amendment but refused her application for an anonymity order.

[3]Oral reasons were provided at the Preliminary Hearing and the claimant applied for written reasons by email dated 16 June 2023. Reasons were provided to the parties on 23 June 2023. Application

[4]The claimant submitted an in-time application for reconsideration in accordance with Rule 71 Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013, Schedule 1 on 7 July 2023. The reconsideration application relates only to the Tribunal’s decision in respect of her application for an anonymity order. The claimant does not wish to have her identity disclosed to the public and she seeks anonymisation.

[5]The claimant referred to various medical evidence in her reconsideration application and the Tribunal asked the claimant to supply that information by 6 August 2023. The claimant submitted that evidence on 6 August 2022 and this was information that was not provided at the Preliminary Hearing on 1 June 2023.

[6]Upon receipt of that information the claimant’s reconsideration application was not refused, and the Tribunal asked the respondents to provide their response to the application and both parties to confirm whether the application could be dealt without a hearing on or before 23 August 2023. Neither party responded by that date, and they were asked to confirm their position again by 8 September 2023. No responses were received.

[7]Having regard to the parties’ lack of responses, the Tribunal determined it was not necessary in the interests of justice to list a reconsideration hearing. Decision of 1 June 2023

[8]The claimant’s original application for an anonymity order was premised on four factors;(1) she has been subject to a lengthy campaign of stalking and harassment and as such she limits her online presence and if it were to be revealed in these proceedings that will place her at risk,

(2) she pursues a disability discrimination claim and sensitive personal information will be disclosed during the course of the proceedings,

(3) disclosure may prevent her from securing future employment and,

(4) if her identity is not anonymised she will not be able to provide her evidence at its fullest. The claimant presented documentary evidence but did not give oral evidence at the Preliminary Hearing on 1 June 2023. In submissions, her representative submitted the claimant’s article 5 & 8 rights were engaged.

[9]During the Preliminary Hearing the Tribunal considered the claimant’s documentary evidence, submissions and balanced the claimant’s Convention rights with the principle of open justice and article 10 freedom of speech. The tribunal concluded the claimant had not presented clear and cogent evidence to justify derogation from the principle of open justice and her application was refused. Grounds for reconsideration

[10]The claimant requests the Tribunal reconsider her application for an anonymity order for the following reasons. First, the claimant is a vulnerable person due to emotional, physical, social, relational, and financial difficulties and the Tribunal must follow the Presidential Guidance on vulnerable parties and witnesses in Employment Tribunal proceedings April 2020 and the Equal Treatment Bench Book 2023.

[11]Secondly, the claimant remains vulnerable to both potential and actual harm if her identify is not protected because of her history of domestic abuse and stalking in respect of which she continues to receive medical treatment for depression, anxiety and PTSD.

[12]Thirdly, the respondent accepts the claimant is a disabled person, but the claimant will give evidence at the final hearing regarding both her physical and mental impairments and other evidence of a personal nature.

[13]The claimant’s fourth basis for applying for reconsideration relates to the impact of the online publication of the judgment on 1 June 2023 (with written reasons of 23 June 2023). The claimant submits this has had a significant and detrimental impact on her mental well-being and she has experienced thoughts of self-harm and suicidal ideation.

[14]The final ground the claimant relies on is her ability to effectively participate in the proceedings without an anonymity order. The claimant was represented at the Preliminary Hearing on 1 June 2023, but she reports she experienced significant distress during the previous two Preliminary hearings when she was unrepresented. She states she suffered a panic attack during the hearing on 7 November 2022. She was unable to speak, and it affected her vision. The process is already challenging for the claimant without the additional stressor of her identity being disclosed publicly.

[15]In the circumstances the claimant maintains that her Convention rights are engaged (articles 2 & 8), and the balance is in favour of granting her application for an anonymity order and the Tribunal should reconsider its judgment of 1 June 2023 accordingly.

[16]The additional medical evidence the claimant relies on in support of her application consists of a letter dated 18 December 2017 from a Consultant Psychiatrist confirming both her physical and mental impairments. The claimant has been diagnosed with recurrent depressive disorder (F33), panic disorder (F41.0) and five other physical impairments.

[17]The claimant also supplied an NHS 111 report dated 26 June 2016 when she requested ambulance assistance in respect of depression, anxiety, self-harm and suicidal ideation. Another report from 2016 was supplied by a High Intensity CBT Therapist regarding the claimant’s treatment for the same issues.

[18]The claimant supplied a list of the 16 medications she is currently prescribed. She also supplied a letter dated 21 December 2022 from Mind Matters regarding various treatment options. Finally, the claimant provided a copy of her adult support plan completed by her social worker dated 12 June 2023 and the claimant is currently receiving support in respect of anxiety, PTSD and suicidal ideation. The plan refers to the claimant being involved in an employment dispute and “this is effecting her mood and she has had suicidal thoughts.” The Law - Reconsideration

[19]In reconsideration applications, the Tribunal must consider whether reconsideration of the Judgment is necessary in the interests of justice as provided in Rule 70 Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013, Schedule 1. If it is necessary in the interests of justice and on reconsideration, the decision (the “original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.

[20]The Employment Appeal Tribunal held in Outasight VB Ltd v Brown 2015 ICR D11, EAT, that necessary in the interests of justice in accordance with Rule 70 affords the Tribunal a wide discretion that must be exercised judicially. The Tribunal must determine whether reconsideration is appropriate in the circumstances having regard to the party seeking the reconsideration but also the other party to the litigation and the public interest requirement for finality in proceedings.

[21]In Ebury Partners Ltd v Acton Davis

2023 EAT 40

, the Employment Appeal Tribunal confirmed that it would be unusual for a party to be given a second bite of the cherry and reconsideration should be exercised with caution.

[22]Notwithstanding that, reconsideration may be necessary in the interests of justice if new evidence becomes available after the judgment. If that is the case, Tribunals must apply the principles in Ladd v Marshall

1954 All ER 745

, CA which are the evidence could not have been obtained with reasonable diligence for use at the original hearing, that the evidence is relevant and would probably have had an important influence on the hearing and the evidence is apparently credible. Conclusion – Reconsideration Application

[23]The Tribunal is mindful the claimant is a litigant in person with both physical and mental impairments. Although the claimant had an opportunity to make submissions at the Preliminary Hearing on 1 June 2023, and she repeats those submissions albeit with more substance, new evidence has been adduced in relation to the impact of these proceedings on her mental health. In particular, the necessity for the claimant to have an adult action plan to support her with suicidal ideation related to her employment dispute.

[24]The plan was put in place on 12 June 2023 after the Preliminary Hearing on 1 June 2023 and links the necessity for support with these proceedings. Furthermore, the claimant herself confirms that her mental health significantly deteriorated as a result of the publication of the Judgment on 1 June 2023 (with written reasons on 23 June 2023) at paragraph 22 of her reconsideration application.

[25]Although the historic medical evidence could have been obtained and submitted by the claimant at the Preliminary Hearing on 1 June 2023, the impact on the claimant’s health and its deterioration is a new matter that has arisen subsequent to the Preliminary Hearing and it is both in the interests of justice and in furtherance of the overriding objective to deal with cases fairly and justly for the Tribunal to consider that.

[26]In the circumstances, the claimant’s application for reconsideration is granted. The original decision in respect of the claimant’s application for an anonymity order is revoked, and the Tribunal takes it again. The Law - Anonymity Order

[27]Rule 50 Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013, Schedule 1 provides: - 50 Privacy and restrictions on disclosure(1) A Tribunal may at any stage of the proceedings, on its own initiative or on application, make an order with a view to preventing or restricting the public disclosure of any aspect of those proceedings so far as it considers necessary in the interest of justice or in order to protect the Convention rights of any person in the circumstances identified in section 10A of the Employment Tribunals Act.

(2) In considered whether to make an order under this rule, the Tribunal shall give full weight to the principle of open justice and to the Convention right to freedom of expression.

(3) Such orders may include- (b) an order that the identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public, by the use of anonymisation or otherwise, whether in the course of any hearing or in its listing or in any documents entered on the register or otherwise forming part of the public record.

[28]The European Convention of Human Rights provides: Article 2 Right to Life 1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection. Article 8 Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as it in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well ebing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. These rights were incorporated into UK law by the Human Rights Act 1998.

[29]In British Broadcasting Corporation v Roden

[2015] ICR 985

, EAT the Employment Appeal Tribunal confirmed the principle of open justice is of paramount importance and derogations from it can only be justified when strictly necessary to secure the proper administration of justice.

[30]The burden of establishing a derogation from the principle of open justice is on the person seeking it and this requires clear and cogent evidence as stated by the Employment Appeal Tribunal in Fallows v News Group Newspapers Ltd

[2016] ICR 801

, EAT.

[31]An anonymity order can be issued where persons affected by the case would otherwise suffer an infringement of their right to a private and family life in accordance with article 8 as confirmed by the Employment Appeal Tribunal in F v G

[2012] ICR 246

, EAT.

[32]In A v Burke and Hare

[2022] IRLR 139

the Employment Appeal Tribunal held the principle of open justice assumes that all the details in a case should remain public unless there is some identifiable injury to the claimant’s Convention rights. The Tribunal must balance whether granting an anonymity order to protect the claimant’s Convention rights or in the interests of justice outweighs the principle of open justice and freedom of expression.

[33]In LQP v(1) City of York Council &

(2) City of York Training Limited (T/A Work with York)

[2022] EAT 196

, the Employment Appeal Tribunal stated; “When considering an application for an anonymity order pursuant to r.50, there is a clear structure to be adopted. It is necessary to identify the relevant Convention rights and then carry out the requisite balancing act between those rights. Open justice is a very important founding principle of our judicial system. The identities of the parties to litigation are important, integral aspects of the principle of open justice. Exceptions need to be properly evidenced.”

[34]The Presidential Guidance: Vulnerable parties and witnesses in Employment Tribunal proceedings at paragraph 13 states that it would be sensible for Tribunals to consider whether a party’s participation and/or the quality of their evidence is likely to be diminished by reason of vulnerability. The guidance further states at paragraph 14 that when deciding whether to make appropriate directions or orders to facilitate participation regard may be had to; any actual or perceived or potential intimidation of a party or witness, whether the party has a mental or physical disability, whether the party is undergoing medical treatment, whether any measure is available to the Tribunal, the views of the vulnerable part and any other relevant matter. Conclusion – Anonymity Order

[35]The Tribunal has retaken its decision in respect of the claimant’s application for an anonymity order pursuant to rule 50(3)(b) Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013, Schedule 1.

[36]As set out in rule 50, the Tribunal must give full weight to the principle of open justice and the Convention right to freedom of expression provided in article 10. Also, the principle of open justice can only be derogated from if the claimant can provide clear and cogent evidence that her Convention rights will be injured or infringed if the order is not granted.

[37]The claimant has provided additional medical evidence confirming she has experienced mental health problems since 2016 and they persist. The evidence also confirms her mental health deteriorated following the original decision of 1 June 2023 and as a result she is experiencing thoughts of self-harm and suicidal ideation because of her employment dispute and, she has an adult support plan in place with effect from 12 June 2023. Therefore, the claimant’s Convention rights protected by Articles 2 & 8 are engaged.

[38]The Tribunal must balance granting an anonymity order to protect the claimant’s Convention rights (specifically Articles 2 & 8 rights) and the principle of open justice and freedom of expression provided in Article 10. On this occasion the claimant has presented clear and cogent evidence to justify that it is necessary to derogate from the principle of open justice to protect her Convention rights and her application for an anonymity order to prevent her identity being disclosed to the public by way of anonymisation is granted with effect from 1 June 2023.

[39]The original Judgment of 1 June 2023 (with written reasons of 23 June 2023) in respect of the claimant’s application for an anonymity order is revoked and the Judgment amended accordingly to anonymise the claimant’s identity.

[1]The reasons for adding Ms Ral as a named respondent are in the claimant’s application dated 15 June 2023 (60). This argues it is not prejudicial to Ms Ral for her to be added as a respondent, but it does not give reasons why. It says it would be in the interests of justice for Ms Ral to be added as a named respondent.

[2]At the hearing both the claimant and Mr Choudhury spoke to this issue: Ms Ral was the Group HR Advisor who made decisions and, regardless of her being a witness for the respondent, she ought to be identified separately as a respondent because of her actions leading to the claimant’s dismissal. There would be a prejudice to the claimant if Ms Ral was not a respondent because the “findings will not bind Ms Ral”.

[3]Ms Johns arguments were as follows: the 1st respondent will not seek to argue that it is not responsible for any acts of Ms Ral, if any are found to be unlawful, i.e. it will not seek to argue a statutory defence under s109(4) Equality Act 2010; there is no ACAS certificate for Ms Ral, a statutory requirement (Mist v Derby Community Health Services NHS Trust

[2016] ICR 543

); the application was made on 15 June 2023 – after a preliminary hearing – with no reasons why it could not have been made earlier. Finally, there is no tangible benefit to the claimant and significant prejudice to Ms Ral being brought into the proceedings at this stage.

[4]I considered the statute: - Schedule 1 to the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 (as amended): “4. If there is more than one prospective respondent, the prospective claimant must present a separate early conciliation form under rule 2 in respect of each respondent…”

[5]I conclude that the reasons seeking Ms Ral to be added as a respondent are weak. I concluded that the claimant may see an advantage in adding Ms Bal, but no explanation has been provided for making this application so late in the proceedings. There is no ACAS certificate for Ms Ral, and these circumstances do not fall within the limited exceptions addressed in the case law (e.g. Mist).

[6]Given the respondent accepts it will be liable for Ms Ral’s acts, if found to have occurred, and that Ms Ral will be a witness, there is no prejudice to the claimant, other than the lack of a judgment naming Ms Ral as a party.

[7]I also noted that it is not alleged that Ms Ral dismissed the claimant, in fact reading the claim form it is difficult to see what allegations are made against Ms Ral. I accepted that there was significant prejudice both to Ms Ral in becoming a party and therefore being potentially personally liable for losses, and for the respondent who would have to significantly change its case and strategy.

[8]For this reason the application fails. Application to strike out the response to the claim

[9]This was a private preliminary hearing by cvp. Unlike in a physical hearing centre it cannot be converted into a public hearing which would allow the public to attend, a fundamental requirement for justice. Ms John’s point, that a strikeout application must be considered at a public hearing, is correct.

[10]I do not accept it was proportionate or consistent with the overriding objective to list a separate Preliminary Hearing to consider a strike-out of the respondent’s defence.

[11]Mr Choudhury argued that there was no reasonable prospect, alternatively little reasonable prospect of the respondent’s defence succeeding. The letter terminating the claimant’s engagement refers to a parental complaint, but “there is nothing in the disclosure that suggests there is one”. He argues there is no investigation, no findings, again there is “nothing in the disclosure”.

[12]I noted that some of the evidence in the bundle suggest that the respondent had a positive impression of the claimant (see the references in the bundle, e.g. 141). I also accepted Mr Choudhury’s argument that if the claim was not struckout there would be an “escalation of costs” to prepare for the hearing.

[13]In the discussion that followed, which involved the claimant and the representatives, it because clear that there are significant arguments – legal and factual – which strongly suggest a preliminary hearing to consider strikeout is not an appropriate step.

[14]I accepted Ms Johns argument that even if the claimant can show there was no parental complaint, there will still be a factual dispute as to the reason why she was dismissed, it is for the claimant to show that the reason for this was ‘something arising’ from her disability. There are significant issues to address in the reasonable adjustments claim.

[15]There followed a discussion about the ‘something arising’ on which the claimant relies. The claimant said that it was her issues of anxiety she had after surgery which led to an infection, and her anxiety dealing with returning to classroom. Ms Johns pointed out that the something arising was her anxiety and her behaviours, i.e. how she interacted with people – see paragraph 24.4 of the 1 July 2023 Order.

[16]I concluded that the issues involved will involve contested factual evidence and complicated areas of law - why was the claimant dismissed, and was it related to her disability; was there a failure to make reasonable adjustments.

[17]I determined that it was unlikely a Tribunal considering this issue at a Preliminary Hearing without the benefit of evidence would be able to determine whether the claim had no or little reasonable prosects of success. There was every prosect therefore of such a hearing being a waste of costs.

[18]In making this point, on reflection and after the hearing, I have concerns about the wording of the List of Issues at 24.4. A list of issues must reflect the claim – and this wording is vague (anxiety and behaviours - how I interacted with people). While the claimant was represented at that Case Management Hearing, it appears that the claimant may have provided this answer during the hearing (“the claimant said she meant…”). There was discussion about the 24.4 wording at the hearing.

[19]I conclude that the issue at 24.4 needs further clarity. The claim has a detailed narrative of issues the claimant says are disability related. The reference to the way she ‘interacted’ makes little sense in the context of this narrative.

[20]We also discussed other issues in the list. I agreed that the claimant can provide the wording of amendments she proposes to the List of Issues, in particular from paragraph 25 onwards; along with the proposed amendments, the reasons why amendments are needed. The claimant must bear in mind paragraph 18 – the List of issues must reflect and clarify the allegations within her claim.

[21]I therefore Order that by 22 December 2023 the claimant to clarify: 1. what it is she alleges arises from her disability that led the respondent dismissing her. This must be based on the contents of her claim – she cannot now raise additional legal or factual allegations. 2. amendments she proposes to the List of Issues, along with the reasons why they are needed.

[22]Note that this date is after the date made at the Hearing, in order to allow the claimant to properly consider what this Order says. Consequential orders on the List of Issues are varied, as below. The claimant’s costs application

[23]Following discussion, the claimant agreed that this application could be carried over to the full merits hearing. Amended defence

[24]The respondents have yet to send their amended defence. The claimant seeks to strike-out the respondents’ defence as a consequence. It was due in June 2023 and “now its October”, no additional time was sought.

[25]Ms Johns pointed to a history of errors on the respondent’s part. There was a change of file-handler, who left and did not hand over the file “this is not an excuse but an explanation”. A compliant ET3 was sent which denies the claims.

[26]I accepted there appeared to have been an unfortunate sequence of events involving the respondent’s solicitors which caused the delay. There is a valid defence to the claim which denies all claims. There is little detriment to the claimant in the respondent not being able to rely on its amended defence, it is for her to prove her claim. There is a detriment to the respondent if it is not allowed to properly articulate why it is it says the claimant was not discriminated against.

[27]I Ordered that the defence must be served no later than 10 November 2023. Further Case Management Orders

[28]By 5 January 2024 the respondent may provide to the claimant and the tribunal its comments on any proposed amendments to the List of Issues; if it does not accept the claimant’s proposed amendments, the reason(s) why. It would be helpful if it could at the same time provide wording which may resolve the issue.

[29]By 12 January 2024 the claimant may provide to the respondent and the tribunal her comments on the respondent’s proposed issues. Hearing bundle

[30]There are still disputes about the hearing bundle – see page 117 as an example. The parties are reminded that there is a continuing obligation to disclose relevant documents throughout the case; the claimant indicated she has additional documents, these should be added to the bundle if relevant to the issues. If there is a dispute about relevance, the most practical solution is to add the to the bundle and allow the tribunal to assess relevance. Documents should be in chronological order. Witness statements

[31]Unless there are exceptional circumstances, witness statements must be exchanged by 19 January 2024. The claimant has expressed significant concerns throughout the claim about delays caused by the respondent, of which their amended defence is only the latest. I agree that a failure to exchange witness statements by this date may cause unfairness to the claimant. EJ Emery 12 December 2023

15/12/2023