Ms K Brittney v Ministry of Defence: 2204428/2020
JUDGMENT
[1]There is no jurisdiction to entertain any of the discrimination claims, whether sex or disability discrimination.[2]There is no jurisdiction to entertain the section 98(4) complaint of unfair dismissal.REASONS
[1]The first part of my adjudication, the refusal of the Claimant’s application to amend the claim for automatic unfair dismissal, is set out in the separate Order, with Reasons. Annexed to that Order is a procedural chronology up to 14 June. Within the Reasons, I brought matters up to date. The Annex is a necessary prologue to what follows and is annexed again to this Judgment, which will become a public document. The Annex focuses on automatic unfair dismissal. As I am now dealing with discrimination claims, I shall give further detail below about those claims, where they are to be found and how and when they arose.[2]After 14 June 2021, no witness statement has been served by the Claimant, as ordered, dealing with extension of time or just and equitable grounds.[3]The relevant directions for this part of the preliminary hearing were made on 10 December 2020 by EJ Adkin and are as follows (using the words of his directions):-(a) Time point/jurisdiction: whether there is any discriminatory conduct complained of which occurred earlier than 15 March 2020 and is, on the basis of the pleaded claim, not part of a continuing act or course of conduct?(b) If so, is it just and equitable to extend time?(c) Whether the discrimination claims should be struck out pursuant to Rule 37, on the grounds that, as currently pleaded, they have no reasonable prospect of success?(d) Whether the Claimant should in the alternative be required to pay a deposit pursuant to Rule 39 in order to continue with the discrimination claims.(e) Any further case management that is required, including reviewing the length of the hearing.[4]As will be seen, the issue of time/jurisdiction at (a) has to be expanded, because the Claimant has brought forward claims of discrimination that are not in the ET1. In these claims, the jurisdictional question is also bound up with the tribunal’s power to allow her to amend. The Disability Discrimination Claim[5]The ETI, received on 20 July 2020, ticks the box for disability discrimination. No claim is formulated in the accompanying, detailed text. In section 15 of the form the Claimant stated that bullying and harassment had caused her severe depression and anxiety; and that she had never suffered mental illness before. There is, therefore, no claim as such, but a pleaded case that the Respondent’s behaviour caused her to be disabled.[6]The Claimant raised two subject access requests: 18 February and 28 October 2020. On 24 July 2020 the Respondent released correspondence and further documents were sent to her on 26 November 2020. It is apparent from what the Claimant wrote on 22 October 2020, in response to the ET3, that she must have been sent in the first 24 July batch the offending email which is the basis of the disability claim she now wishes to add by amendment. This is because she wrote (page 61): “The managers believed it was ok to send emails stating I was Mentally Unstable, live in a fantasy world and not to be trusted around Men.” I also note that towards the end of this document, under the heading ‘Disability’, she put matters in a way consistent with the drafting of the ETI. The disability of severe depression and anxiety is said to have been caused by the Respondent’s behaviour. No disability discrimination claim was being advanced.[7]The offending email of 6 February 2020 stated that the writer believed the Claimant to be “mentally unstable” and referred to her “fantasy world.” The Claimant’s paraphrase about working around men is not what was written, but it was said she was not suited to work with the team. This email is the basis for the disability discrimination/harassment claim.[8]At the 10 December 2020 hearing before EJ Adkin, the amendment application that he envisaged did not concern disability discrimination. It was limited to automatic unfair dismissal. The Claimant was, however, ordered to particularise the disability discrimination claim. The answer came on 8 January 2021 and it was there that the offending email was said to be direct discrimination or harassment. The sex discrimination claims[9]These claims have emerged in a confused way.(1) In the text attached to the ET1 at pages 17 and 18, the Claimant alleges that in the first part of her employment (‘Main Building’) the CCTV camera repeatedly zoomed in on her face and chest. This was on 13 September 2018. The associated and unspecific allegation of harassment also refers to that date.(2) On page 18 are some further allegations of harassment going up to 10 December 2018 but it is unclear if these are said to be sex discriminatory. It appears that the Claimant moved to work at Horseguards on 29 January 2019.(3) In response to EJ Adkin’s 10 December 2020 order for particulars, the Claimant in her response of 8 January 2021 raised four new matters. The first was an alleged sexist comment by Mr Bean on 8 August 2018. The second was being blocked from going on a course in September 2018. The third was being blocked in a similar way in October 2018. The fourth was not being installed as data manager in February 2020.Conclusions
[10]I will deal with matters chronologically and start with the claim of sex discrimination in the ET1 particulars document. This seems to be centred on the incident of 13 September 2018 and the Respondent’s case is that it is long out of time; and, further, it has no reasonable prospect of success.[11]This claim is on the face of matters 19 months out of time. I accept the Respondent’s contention that there will inevitably be prejudice in having to reconstruct the events of September 2018 at this remove in time. I also accept that the prospects of adhering to a final hearing starting on 27 September 2021 are remote. The history of interlocutory difficulties and disagreements, do not inspire confidence that the date can be kept.1 In any event, Mr Allsop, on instructions, applies for the existing hearing date to be vacated if the claim is allowed to proceed and I would be inclined to accede to that, as it seems improbable that pre-trial preparations can be made in time.[12]A further important consideration is that the Claimant raised a grievance about these matters on 28 January 2019 and knew the outcome about a month later, on 18 February 2019. There is no explanation why she delayed in making a claim until 20 July 2020. These are substantial periods of delay.[13]Were I to allow it to proceed, Mr Allsop says it should, in any event, be struck out, because it is bound to fail. This is based on the rejection of the grievance (the CCTV having been viewed) and the apparent refusal of the 1 The evidence for this observation can be found in the Claimant’s emails this year, examples of which are communications dated 28 and 29 April, which make allegations against the Respondent’s solicitors. As recorded in the case management order dealing with amendment to add the automatic whistle-blowing claim, the Respondent has made a counter-allegation against the Claimant. Claimant’s union in July 2019 to support her in this complaint. These matters are documented in the bundle.[14]It is not conclusive that the Claimant has not explained the delay; but it is something I cannot overlook. When I add it to the other factors I have summarised, I conclude that the Respondent will be prejudiced in having to deal with this, probably in spring to mid-2022; and that there is no basis asserted for saying it would be just or equitable to hear this old and stale complaint. It also appears to have no realistic prospect of success and I adopt the short reasoning Mr Allsop outlined.[15]Turning next to the four matters in paragraph 9(3) above, the most recent relates to February 2020. This claim seems next to hopeless, as the documents show that the Respondent already had a Data Protection officer in place. The three other matters cover a similar timeframe to the pleaded 2018 claim, extending a little further back to August 2018. They are not claimed in the ET1 but have been inserted in later particulars. The absence of any explanation for this is also relevant. The third claim in the above paragraph also has the difficulty in the papers that the Claimant was seemingly supported by a manager for the programme she wanted to attend. In my view, there is no basis on which I could reasonably say that it is just and equitable either to allow the amendment or to extend time for any of these four new claims. Two of them also seem to lack any reasonable prospect of success.[16]The final jurisdictional question concerning an out of time claim relates to the disability discrimination claim. Again, there is unexplained delay. Here, I can see that the Claimant could not have raised this in the ET1, but she was in possession of the relevant facts by 24 July 2020. On 22 October she alluded to the offensive email but formulated no claim. This only surfaced on 8 January 2021. The chronology of delay calls out for some sort of explanation, but there is none available.[17]The question of prejudice requires two other points to be noted. First, the delay in final adjudication after 24 July 2020 becomes all the greater when one notes that a trial will not happen until 2022. If this were just a post-lockdown listing problem, no point could be fairly taken against the Claimant. But it is evident to me that the delays this year, which have made the September listing ineffective, are largely because of the Claimant’s default. She has not complied with orders and the consequence is that something that ought to have been decided on 23 March did not receive an adjudication until August.[18]The second point is even more significant. It might be tempting on the basis of my summary of events to think that the disability discrimination/ harassment claim is a short matter that concerns one email of 6 February 2020. This would, in my opinion, be an unrealistic and misleading conclusion. The reference to the Claimant’s mental health in the email will be said by the Respondent to be justified. Mr Allsop made this clear. No doubt, the Claimant would counter this and say that it was wholly unjustified. I have no doubt that she would seek to rely on her version of events up to that point and this would bring in her voluminous catalogue of complaint and grievance. The extent of this in the pleadings and correspondence raises the likely prospect of a hearing that might occupy many days.2 For this hearing alone, over 800 pages have been produced. This out of time complaint, if allowed by amendment, would bring in all the factual matters that underlie the Claimant’s claims that I have ruled we should not hear, including the whistleblowing claim. It would, I consider, amount to a hearing of the factual content of those claims by the back door. In my view, there is no realistic prospect of a relatively short hearing that can be limited to the remarks made in writing by one person.Summary
[19]The CCTV allegation of September 2018 is substantially out of time. It would be prejudicial to allow this to proceed at this point, bearing in mind the absence of any explanation. In the alternative, were it to proceed, it seems to have no reasonable prospect of success.[20]The next 3 claims that are new are also 2018 matters: the Bean comment and the two allegations of being blocked. These are new claims not allowed by amendment, as, bearing in mind the manner and timing of the application and the other relevant factors, it is prejudicial to the Respondent for the amendments to be granted. Further, two of the claims seem to have no reasonable prospect of success and these are the allegations of being blocked from a programme in 2018 and the data manager complaint in 2020.[21]The disability discrimination claim is presented out of time and there is no explanation of the delay between 24 July 2020 and 8 January 2021, or even the earlier date of 10 December 2020. Leave to amend is refused on the same basis as above. The additional degree of prejudice are the consequences I have identified, were the amendment to be allowed.[22]For all the reasons I have set out, there is no jurisdiction to entertain the discrimination claims.[23]I cannot see that I have made an Order to dismiss the ‘ordinary’ unfair dismissal claim as the Claimant lacks two years’ qualifying service. I have therefore added this to the above Judgment. Employment Judge Pearl Date: 10th August 2021.