Mr K Coyle v The Royal Marsden NHS Foundation Trust: 2204867/2022 and Others
EMPLOYMENT TRIBUNALS
Case No 2204867/2022
Between
Mr K CoyleClaimantThe Royal Marsden NHS Foundation TrustRespondent
Before
Employment Judge Norris, sitting aloneDate 22 January 2025
JUDGMENT
The Claimant’s application for interim relief is refused. JUDGMENT ON FURTHER RECONSIDERATION Upon the Claimant’s application under Rule 71 (Schedule 1, Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013) (“Rules”) to reconsider further the decision to refuse his claim for Interim Relief, the application to reconsider is refused under Rule 72(1) as there is no reasonable prospect of the decision being varied or revoked.
REASONS
Introduction
[1]The Claimant worked as a Kitchen Porter for the Respondent, between February 2012 and July 2022. His application for Interim Relief (IR) was refused at a public hearing on 24 August 2022 and his application for reconsideration (“First Reconsideration”) was refused under Rule 72(1) on 17 September 2022 as there was no reasonable prospect of the decision being varied or revoked. These reasons should be read in conjunction with the First Reconsideration reasons to provide the background to the application and First Reconsideration. Application for Further Reconsideration[2]Following the IR hearing, the Claimant has emailed the Tribunal on a large number of occasions. It does not appear that all of his emails were referred to me before the First Reconsideration judgment was issued. The emails that had been referred were as follows: Date Time Contents 25/08/22 11.07 Medical certificate and email exchanges 11.09 Roster photograph and emails 16.07 Notifying intention to request reconsideration 28/08/22 18.48 Roster photograph and emails. Document* called “submissions” (in fact, further emails) 29/08/22 19.35 Emails 08/09/22 11.34 Emails 11.36 Medical certificate/emails 11.38 Roster/emails 11.51 “Final submissions” (same item as * above) 13.54 Emails re Trade Union activities[3]At 20.28 on 8 September, the Respondent emailed to say that it had been copied in to ten emails from the Claimant. The Tribunal emailed the Claimant on 8 September to say he was not to send in anything further1. On 15 September at 13.34, the Claimant emailed the Tribunal chasing the response to the application for reconsideration. The refusal was promulgated to the parties on 17 September.
The applicable law
[4]On 21 September, the Claimant sent further emails to the Tribunal at 10.19, 10.21, 10.22 and 13.28. These comprised forwarded versions of emails as follows: 07/09/22 20.00~ 24-page “revised reconsideration” email 132 pages - minutes and documents 12 pages dismissal/appeal minutes 6 pages personal statement 20.12 23 pages emails 11 pages emails 9 pages emails 20.07 13 pages medical documents and emails The email at 13.28 was a repeat of the 20.00 email of 7 September 2022 (item marked ~ above). On 22 September 2022 at 10.25 the Claimant sent the same email again.[5]I have also learned that on 5 September 2022 the Claimant emailed the Tribunal at 10.40 to say that he intended to submit documents for reconsideration. It is therefore unclear which ten emails the Respondent had seen by 8 September, but in light of my decision below I did not consider it necessary in the interests of justice to make further enquiries. 1 The Claimant denies receiving this email Rules[6]The relevant Rules for this application read as follows: RECONSIDERATION OF JUDGMENTS70. Principles A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.71. Application Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary.72. Process (1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the application. 6. As with the First Reconsideration, this means that the task before the Tribunal is to consider whether reconsideration of the decision is in the interests of justice. If there is no reasonable prospect of the decision being varied or revoked, under Rule 72, the application shall be refused.[7]Since at the time of the First Reconsideration, the Claimant’s documents were not all before me, I have decided to re-make the decision. I have been careful to avoid “confirmation bias” when conducting this further reconsideration.
Conclusions
[8]The Claimant’s 24-page “revised reconsideration” document says (in summary) at the beginning that he will show that the allegations against him were false and hence could not have been the reason for his dismissal. He says he will show a causal link between protected disclosures he made and his dismissal. The document comprises discussion/copies of the following, in broad terms, on the following page numbers: 1-8 the Claimant’s absence on 3 February 2022 and whether it should have been discounted as misconduct because it was booked as annual leave; 8-10 deductions from the Claimant’s pay; 10 the Claimant’s assertion that the proceedings against him were a sham; 11-12 the Claimant’s representation of a colleague; 13-14 previous protected disclosures the Claimant says he made; 15 the fact that the Claimant is “not begging for interim relief” but wants me to look at the evidence; 16 a list of personnel involved; 17-24 emails from 2018 and 2022.[9]It is notable that in this document and in the nine pages of emails forwarded on 7 September 2022 at 20.12, the Claimant still appears to be relying on the fact that he was a TU representative and arguing that this led to his dismissal. I have already explained that in the absence of a certificate in line with section 161 TULR(C)A 1992, the Tribunal does not have jurisdiction to hear an interim relief application on these grounds. Further, this dilutes the Claimant’s contention that the reason or principal reason for his dismissal was his protected disclosures.[10]Much, if not all of the documents on which the Claimant relies were either in the bundles at the IR hearing or had been sent in by the Claimant in advance of the hearing and therefore had been seen by me. The Claimant is again asking me to reach a different decision on that which I have already considered and rejected.[11]The Claimant cannot show that all of the allegations against him were false; he admits some of the conduct involved. For instance, he accepts that having been given a first written warning previously and being told that he was not permitted to sleep on the Respondent’s premises (and having been reminded of that in the recent past) he once more did so in March 2022. The Respondent, on the face of it, found this to be gross misconduct.[12]The Claimant argues that the first time he did this, it was because the Respondent had made unlawful deductions from his salary so that he was homeless, and he says that was the same in February 2022, after which he was given the reminder. Following that reminder however, he says the reason he slept at work in March 2022 was that he had sent a large sum of money to his sister to assist in the care for his terminally ill father. Clearly there is no criticism of this altruism intended, but he admits that in circumstances where he attaches no blame to the Respondent, he nonetheless slept on work premises and he also admits that he knew he was expressly not permitted to do so.[13]Secondly, the Claimant does not deny sending the emails that were found to constitute misconduct on his part and nor does he deny being absent on 3 February 2022, although he says in relation to the former that this arose from a period of heavy drinking and in relation to the latter (which the Respondent also found to be gross misconduct) that he was legitimately absent because he was on approved annual leave on that date. He has drawn the Tribunal’s attention to the number of times when he made this point in the investigation and subsequent internal hearings. However, such repeated assertions by the Claimant shed no light on the Respondent’s true reason for dismissal.[14]In any event as I explained at the IR hearing, these issues will be for the Tribunal to consider more fully in relation to the claims. I am not deciding as part of this application whether the Claimant’s absence on 3 February was authorised or not, and whether, if the latter, it was reasonable to dismiss him for that and his other conduct, but only whether it is likely to be found at a full Hearing that the reason for his dismissal was that he had made protected disclosure(s).[15]As the matter stands, taking into account the hundreds of pages that I have been asked to consider, I conclude that the Claimant does not have a “pretty good chance” of showing that the reason for his dismissal was a protected disclosure, or more than one. He has not shown, and clearly cannot show, that all the allegations against him are wholly false, although I accept that he may have an explanation for his conduct and once it has been put into context, he will be entitled to make the argument that the Respondent’s reaction was unfair in all the circumstances or indeed that the Respondent did not have a genuine and reasonable belief in the misconduct alleged. He may succeed in his argument that it was because of his protected disclosure(s) and/or TU activities.[16]At a full Hearing, it will fall to the Respondent to show the reason for dismissal and that it was a potentially fair one. In an interim relief hearing, the burden is on the Claimant to show it is likely to be found at trial that his dismissal was for a specific, impermissible, reason. He has not so shown. In the circumstances, the application is refused as there is no reasonable prospect of the decision being varied or revoked.
Discussion and Conclusions
[17]The difficulty for the Claimant in seeking to rely on this “dismissal letter” and/or advancing the theory that Ms Searight was the decision-maker is at least three-fold: first, he was not dismissed on or shortly after 30 March 2022. He was dismissed on 22 July 2022. It is common ground that the Respondent did not send to the Claimant this letter of 30 March 2022, which I consider is likely to have been a draft. For instance, in telling the Claimant he is to make arrangements to retrieve his personal possessions, it asks as an aside “WITH WHO?? [sic]”. As I set out in the quote below, there is a further query on the first page.[18]Second, Ms Searight is not the purported author of the letter of 30 March 2022. This letter is signed by Mr Jackson, Head of Facilities. Nor is Ms Searight the purported author of the letter of dismissal that the Claimant was sent on 22 July. That purports to have been sent by Ms Topp, though I make no specific finding in this regard.[19]Third, and most significantly however, the passage is not quoted accurately and/or fully. What the letter actually says (referring to a disciplinary hearing held on 30 March 2022) is: “You advised in advance that you would not be attending due to mental health issues and that you would provide a valid medical certificate to validate this. DID THIS MATERIALISE? [sic] However, it was decided that the hearing should proceed for the following reasons:• The evidence that you submitted suggested that you were going to try and take your case to the highest level• You repeatedly responded to emails showing no regard or intention to follow the process outlined in the Trust’s Disciplinary Policy and in other correspondence• The inappropriate nature and content of the messages that you were sending to numerous people were considered to be escalating and the Trust has a responsibility to protect its employees from such communications• The protraction of this disciplinary process appeared to be having a detrimental impact on your mental health with content of emails becoming increasingly irrelevant, unrelenting and erratic.• There is strong and compelling evidence that the allegations are founded with little or no mitigation received in response, despite numerous emails being received and delaying the hearing is unlikely to yield any different outcome”.[20]When the lines “quoted” by the Claimant are read accurately and in their full context, it is clear that the author of the letter is not admitting to dismissal as “protected disclosure retaliation”. This is a gloss that has been put on the words by the Claimant. The Claimant’s indication that he was going to take his case “to the highest level” was said to be one of the contributing factors to the decision not to postpone the disciplinary hearing and has not been advanced in this letter or in any other document before me as the reason why the Claimant was dismissed. The Claimant’s interpretation of the actual words used and the intention behind them can of course be put to the Respondent’s witnesses at the full Hearing.[21]What is further clear (apparently from the results of a Subject Access Request) is that on 1 July 2022, Ms Topp, who on the face of it dismissed the Claimant three weeks later, emailed colleagues to flag her concerns that a letter inviting the Claimant to a meeting had been sent “from” her without her having any knowledge of its contents. She concludes, “I’m not going to say I’ve done something when I haven’t”.[22]As I have previously noted, in her witness statement (on which she was not cross-examined at the IR hearing) and in the dismissal letter, Ms Topp sets out the purported reason(s) for the Claimant’s dismissal: his conduct and behaviour during a previous investigation was found to be inappropriate, he was found to have acted in a rude and aggressive manner towards managers, and he allegedly failed to engage with managers and disobeyed a management instruction not to sleep on site, notwithstanding a prior written warning and a reminder for the latter. As I have previously found, the Claimant had admitted some of the behaviour alleged, despite wanting to put it in context and/or arguing that it should not have been considered to amount to (gross) misconduct. Those are points for him to advance at the full Hearing next year.[23]Again, questions about the status of the letter of 30 March and the other points that the Claimant makes about Ms Searight’s involvement in the process can also be put to the Respondent’s witnesses, if necessary, at the full Hearing. However, the 1 July 2022 email does not assist the Claimant before me in pursuing the argument that Ms Searight was the person to dismiss him and/or that that dismissal was because he had made a protected disclosure(s). Thus I remain unable to find that the Claimant has a pretty good chance of showing that any protected disclosure(s) he had made were the reason or principal reason why the decision-maker, whether or not that was Ms Topp, decided to dismiss him.[24]The Claimant’s reliance on Fairhall, which did not concern an application for interim relief, is also misplaced in this context.[25]In the circumstances, I did not consider it necessary to ask the Respondent to reply further to the application, which is refused.[33]The respondent applied on 3 January 2024 for an order for the claimant to:(i) desist from sending further correspondence directly to the respondent about the matters raised in these proceedings;(ii) desist from sending objectively insulting correspondence to the respondent’s representatives or making baseless allegations about them; and(iii) ensure that he only corresponds with the respondent’s representatives in a professional and polite manner. I agreed to this application for the reasons I gave: the respondent is legally represented and there is no reason for the claimant to correspond directly with the respondent in relation to these proceedings; I agreed that the extracts of the correspondence on which the respondent relied were objectively inappropriate, offensive and unacceptable, and the claimant agreed that some of the language he used was unacceptable. 2 De Keyser v Wilson [2001] IRLR 324 EAT 3 Arrow Nominees Inc v Blackledge [2000] EWCA Civ 200 CA[34]The claimant was therefore ordered to do the following with immediate effect:a. To ensure that all correspondence relating to these proceedings is sent directly to the respondent’s legal representatives (not to the respondent).b. To desist from using neutral language in all such correspondence (sic).[35]For the avoidance of doubt, reference to the respondent’s legal representatives at paragraph 34a is to the respondent’s solicitors and excludes Mr Caiden. 18. On 1 August 2024 the Tribunal wrote to the parties on the instructions of EJ Khan. The letter drew attention to the obvious slip at para 34b of the order and in addition included the following: The Claimant is ordered to do the following with immediate effect:a. To ensure that all correspondence relating to these proceedings, any related Data Subject Access Request or civil proceedings relating to the matters before the Employment Tribunal is sent directly to the Respondent’s legal representatives (not to any employee of the Respondent).b. To only use neutral language in all such correspondence. For the avoidance of doubt, reference to the Respondent’s legal representatives is to the Respondent’s solicitors … and excludes Mr Caiden, [another named barrister] and either of their clerks. 19. In a long letter dated 15 August 2024 the Respondent’s solicitor complained of breaches of the order sent following the hearing on 7 and 8 February 2024 and sought an unless order with a view to the claims being struck out in the event of any further breach. As to para 34a, she identified numerous breaches in copying correspondence to the Respondent’s barristers (and clerks). In respect of para 34b, she quoted extensively from correspondence written by the Claimant to her firm between 30 May and 31 July 2024. The letter speaks for itself but it may be helpful to include some extracts here: You don’t seem to be able to answer anything - I have previously requested that you refrain from offering me unsolicited advice so please this – from now on – you contact me from 8-4 okay?? [30 May 2024] take it from me – I have no desire to see your name at all - never mind after 4 – you don’t seem so meek and mild these days … - you are instructed to correspond AT ALL TIMES from 8-4 [20 June 2024] are you related to [two of the Respondent’s witnesses] - or both? is she not a voyeur? [20 June 2024]• I’ll contact who I choose… How much do you charge by the hour??• Can you do anything correctly??• I am getting sick and tired of dealing with your incompetence• Can any of you - ANY OF YOU - do something correctly?• … It staggers me, that still, still – in order to grasp a shilling – you conduct yourself in this way [All emails of 12 July 2024] (After an apology for calling two members of the respondent’s solicitor’s secretarial team ‘the pure, total scum of the legal profession’) [the solicitor acting for the respondent and her client were] absolutely despicable to deal with and [would be the subject of] a formal complaint as appropriate. [20 June 2024] The police are next [email of 23 July 2024] I will be making criminal complaints to the police in this relation to the conduct of the Trust personnel involved in this case – fraud, forgery and even voyeurism - for good measure [letters of 25 July 2024 to the Respondents’ CEO and Deputy CEO] In the letter (para 34) the Respondent’s solicitor placed on record that consideration had been given to applying for a striking-out order based on the Claimant’s conduct but that a decision had been taken to allow him one further opportunity to remedy his behaviour and communicate appropriately. Failing that, she reserved the right to make such an application. 20. By a letter of 10 October 2024 written on the instructions of EJ Khan, the Tribunal pointed out that correspondence of the Claimant referred to in the letter of 15 August contained clear breaches of the orders to confine communications to the Respondents’ representative and to use only neutral language and continued: It is of particular concern that the Claimant has continued to use objectively inappropriate, offensive and unacceptable language in breach of the Tribunal’s order; and equally that the Respondent’s solicitor has complained about the actual or potential harassing effect of this correspondence. This conduct is also plainly in breach of the overriding objective and has the potential of undermining the possibility of having a fair hearing. It cannot be tolerated. I note that in the document … attached with his email to the Tribunal dated 28 August 2024, the Claimant has confirmed that he will ensure that all correspondence is sent to the Respondent’s solicitor, at least until the next preliminary hearing. However, he has provided no such undertaking in respect of the content and tone of such correspondence, and has denied using inappropriate language in his correspondence. The following orders are therefore made: a. The Claimant shall ensure that he sends all correspondence which relates directly or indirectly to these proceedings (which includes any person employed by the Respondent about whom the Claimant has complained – or has threatened to complain – in these proceedings) to the Respondent’s solicitor … b. The Claimant shall also ensure that he uses neutral language in all such correspondence. Should the Claimant fail to comply with these orders, an Unless Order shall be made … with the consequences that any subsequent breach will result in all the claims being dismissed without further order. 21. On 11 October 2024, the very day after receiving the Tribunal’s letter just referred to, Ms Topp, the signatory of the letter by which the Claimant was dismissed, received the telephone call which precipitated the Respondent’s strike-out application. I will return to that subject under ‘Further findings’ below. 22. The call to Ms Topp was one of 87 calls made on the Claimant’s phone to the Royal Marsden NHS Foundation Trust in the week between 11 and 18 October 2024, which accounted for some 55 minutes of ‘talk time’. Some were ineffectual, with no communication resulting. But what is beyond question is that, in three instances at least, all on 18 October, the caller did get through and spoke to members of the Respondent’s staff. These calls were documented at the time. 23. The first record, by a Deputy Director of HR, included: I had a call from a gentleman saying he is a barrister (their name was sth like Dodiade) and in a very threatening tone (he kept saying he was recording me) he demanded to know what the Trust do if an employee wants to log a grievance against the Trust. He was trying to make me say that I don’t know or that I did not want to tell him the process. At some point I gave him the email for Employee Relations and the HR … And had to hang up because he was shouting at me. He kept saying ‘so you are saying that the Trust does not allow staff to log grievance etc’ to which of course I responded ‘no this is not what I said’ … 24. The second note, made by the Head of Workforce Planning & HR Systems, included (confusing pronouns altered): I received a phone call … from a very aggressive man who was asking if [another senior manager] could speak to [him]. … He then started to shout if I was in HR or not and why I could not accept [his] grievance. … He kept saying he was recording me and was making statements (ie ‘so you are saying that HR does not have a process for staff to log grievances …’) that I hadn’t made, to which each and every time [I] said ‘no – I did not say that’. I think he was trying to make me say ‘I don’t know’ or dismiss [him] whereas I was telling him that the special team to answer his request was Employee Relations. He threatened me that ‘I did not want to receive the grievance’ to which I stated ‘this is not my specialty, I am not responsible for this area but you can contact ER on …’ I told him that I found his tone threatening a couple of times and in the end managed to hang up the call (he was still threatening me when I [hung] up) after I had given [him] the email for ER … and the [name of the Head of ER] He demanded the extension for [the Head of ER] to which I answered the right way is to contact the ER service desk; he was furious that I was not giving him the details for [the Head of ER] and the names of the other ER team members. I asked [his] name and [he] said ‘Dodiade’ or something like that. It was the most aggressive/abusive call I had to take in the 16 years in NHS. 25. The third note was made by the Executive Assistant to CEO of the Trust. Her record was as follows. I took a call from a person saying he is Kevin Coyle’s barrister, Neil Goodiman (unsure of the surname). … He was firing questions at me about Kevin’s case. I repeatedly said that I cannot discuss anything over the phone and asked him to put it in writing to me. I was on the call for 12 minutes and he continually raised his voice asking questions. Said he can legally file my name on the case, insisted on meeting me next week, said Kevin was in a mental institution now because of our behaviour, unions are getting involved, repeatedly said the call was being recorded. I asked him to stop raising his voice at me and to stop talking over me. He let me say again, that I need everything in writing as I cannot discuss anything on the hearsay he was Kevin’s barrister and he should understand that. I informed him that it would need to go through our legal department. He then asked me to be quiet so he could talk … but the phone went dead. I don’t personally think he is a barrister with the way he was conducting the call. 26. The Respondent applied for the claims to be struck out by a letter dated 17 October 2024. Had it been sent a few days later, no doubt it would have included express reference to the three calls on 18 October as well as the call to Ms Topp made a week earlier. 27. I must also refer to an audio message which the Claimant left on the Respondent’s solicitors voicemail on 12 November 2024, which included the following: What’s happening with the information I have requested from you? What’s happening with it? What’s happening with it? Just call me back. But you’re obviously so willing to call me back these days or send me an email. What is happening with the disclosure that you are obliged to provide to me? … Put this before any court. You are the defender of workplace abuse. Put that before judge. And why don’t you appear before the judge? What’s up with you…? … How much have you earned in the last two years? How much? … Give me the documents, you will have no contact with me. How many times do I have to make that point? If you don’t give me the documents by Friday this week I will come into your office physically next week and we can discuss disclosure and you can give it to me then. Now, I trust that is clear. If there’s any issues that is not clear, get back to me. Play your voicemail. Take your shillings and put it before a judge. … 28. In correspondence in November 2024 the Respondent invited the Claimant to provide a copy of the recording of the call to Ms Topp and to supply some information concerning his barrister’s identity and related matters. The Claimant declined these requests, purportedly on grounds of privilege. 29. Each of the five individuals who have complained of aggressive and intimidating behaviour by or on behalf of the Claimant between October and November 2024 is a woman. Each says without challenge that the treatment meted out to her was by a man. Further findings 30. In making findings as best I can on the events of 11 October 2024 and thereafter, I have had to weigh the evidence of Ms Topp and, so far as it went, that of the Claimant. I say ‘so far as it went’ because (as I will explain) the Claimant, while maintaining that Ms Topp was an untruthful witness, was, on his own case, unable to give any relevant first-hand evidence concerning the call made to her on 11 October 2024 or the many calls over the following week, including the three documented calls of 18 October 2024. 31. The call was made by a man using the Claimant’s mobile phone. Ms Topp explained (witness statement, para 2) that she had conducted the disciplinary hearing on 1 July 2022 which had resulted in the Claimant’s dismissal. She continued: 5. On 11 October 2024 I received a phone call via the Trust’s switchboard from an individual who claimed he was a barrister although I have no way of knowing whether that is true. I believe he said his name was Neil Thomas (‘Mr Thomas’) I am not 100% sure whether he told me he was Kevin’s barrister although this became obvious during the call. 6. I was not expecting the call. I had not thought about Kevin’s case for more than two years and initially, I had no idea what Mr Thomas was talking about. Once I became clear that Mr Thomas was talking about Kevin’s case, I remained slightly confused as to what the caller was telling me. He told me that he was recording the call and was quite aggressive in his tone. He asked if I had been the dismissing officer in Kevin Coyle’s case to which I incorrectly stated that I was not the dismissing officer. This was because I had thought he was asking who presented the management statement of case at the appeal hearing, which had been my colleague Kirsty Green. 7. Mr Thomas referred to the fact that Kevin was considering criminal action against me personally then said words to the effect of “I know this was the Trust and you had no involvement”. He then proceeded to ask me to confirm that I had not signed various documents. I had no idea what documents he was referring to and told him this. 8. I understand that Kevin emailed the Tribunal on 11 October 2024 … stating that I had told the barrister that I had said I did not sign any documents including the dismissal letter or my previous witness statement to the Tribunal. The conversation was confusing, out of the blue and Mr Thomas kept talking over me; however, I do not believe I said anything that could have been construed as my claiming I did not sign any documents. The call ended abruptly as the phone I was called on ran out of battery. For the avoidance of any doubt, I did electronically sign the letter … confirming Kevin’s dismissal … 9. I found this call intimidating. This was for a number of reasons, firstly, it came out of the blue and related to something I had not thought about for more than two years; which meant I had not had a chance to refresh my memory. Secondly, Mr Thomas made several references to recording the call and bringing criminal action against me personally, which made me feel nervous. I also felt pressured into giving the answers that he wanted, even if they were not correct in particular, he did not clarify what he meant by various questions and he frequently interrupted. 32. I accept Ms Topp’s evidence as substantially true and accurate. I found that she was certainly light on detail and tentative in the way in which she answered questions. But the general thrust of what she said was clear enough. I found her evidence convincing. It was internally consistent. It was also consistent with the letter of application sent six days after the relevant events and with the contemporary records of the three other members of the Respondent’s staff who received phone calls from the Claimant’s number on 18 October 2024. And it was not undermined in crossexamination. 33. By contrast, I regret to say that I felt unable to place any confidence in the evidence which the Claimant gave. He did not impress me as a witness of truth. Time and again, he was evasive, shying away from awkward questions. He gave answers which were internally inconsistent. He also played the barrack-room lawyer on occasions. One example was his absurd complaint that EJ Khan’s orders concerning his behaviour were ambiguous. As he knew very well, they were anything but. 34. When seeing no alternative to answering questions, the Claimant showed himself willing to give evidence which was wildly implausible and, at some points, risible. The most striking instance was his account of the events of 11 October 2024. He told me that on that day he had fallen in with some barristers in a bar in Dublin and told them about his case. This had led to a proposal by one that he would telephone the Royal Marsden Hospital to ask Ms Topp some questions. The Claimant had handed his mobile phone to that individual so that he could make the call. He did not ascertain that person’s identity before doing so and, to this day, does not know his name. He did not authorise him to act on his behalf in any way. The call had been made ‘a few metres away’ from him but not (apparently) so close that he could hear what the speaker said. He initially added that his recollection about events on 11 October was somewhat hazy because it had been a ‘long afternoon’ although he seemed to abandon this on being shown evidence which demonstrated that the call had happened early in the afternoon (soon after 1.00 pm). This evidence included his email sent to the Tribunal five minutes after the call to Ms Topp, copied to the Respondent’s solicitor, stating that his ‘legal representative’ had just spoken to Ms Topp ‘in a recorded call’. Asked about the reference to a ‘recorded call’ he would not accept that the word ‘recorded’ strongly implied that a recording had been made of the call, contending that the expression was apt to describe a call of which a note had been taken, although as to that, no note has been produced and no explanation for its non-disclosure given.4 35. In evidence, the Claimant remained unshaken in his insistence that he had never authorised anyone to make any phone call on his behalf in relation to his case. He did not accept that giving his phone to someone who had proposed making a phone call on his behalf to the Respondent, as he claims to have done, would have amounted to authorising that person to make a call on his behalf. Shown an email he had written to the Respondent’s solicitor dated 21 October 2024, in which he had said, ‘… my barrister will contact you personally’, he denied that this was a representation that a barrister was acting for him. He said that it merely alluded to the possibility that he might appoint someone to represent him in the future. The Claimant was shown a phone log of 86 calls made from the same number to the Royal Marsden Hospital between 11 and 18 October 2024 (these did not include the call to Ms Topp, which went through the switchboard). He agreed that the calls had been made on his phone. He did not acknowledge any of these calls as having been made by him and was adamant that he had not authorised anyone else to make any of them. Asked how it came about they were made on his phone, he said only that, over the relevant period, he had been drinking heavily. He was shown the three emails of 18 October 2024 summarised above written by members of the Hospital’s staff, referring to separate phone calls received that afternoon from a man claiming to be his barrister, asking questions in a very aggressive fashion, shouting, talking over them, threatening them with personal liability and warning that the call was being recorded. He told me that he did not know who had made these calls.[36]I reject as untrue and knowingly false the Claimant’s ludicrous evidence about the phone calls. I am satisfied to a very high standard that all 87 calls were made either by him or by him or by one or more individual(s) acting on his behalf and with his authority. Submissions[37]Mr Caiden relied largely on his skeleton argument. He contended that the essential requirements for a striking-out order were amply satisfied. The Claimant’s conduct had been grossly unreasonable. His repeated breaches of EJ Khan’s orders demonstrated that he was not prepared to ‘play by the rules’ and made a fair trial impossible. That was made all the more clear by his behaviour at the hearing, in which he had given obviously false evidence. And striking-out was a proportionate response in the circumstances given the Claimant’s awareness that his behaviour was impermissible and his preparedness nonetheless to ignore the directions repeatedly given by EJ Khan.[38]Although I was hearing Mr Caiden’s application, I reversed the natural order 4 In an email of 3 December 2024 the Claimant told the Respondent’s solicitor that he ‘understood’ that a note of the call had been made. and heard the Claimant last. In his bumptious, not to say arrogant, submissions, he argued that his behaviour came ‘nowhere near’ to exposing him to a strike-out risk. He might have been ‘impolite’ on occasions but he had been driven to extremes of frustration by the unreasonable conduct of the litigation on behalf of the Respondent. His conduct fell far short of behaviour ‘bordering on criminal conduct’ which might warrant a striking-out order. Moreover, his case had great merit. Indeed, it was the worst case of workplace abuse that had ever come before the Employment Tribunal. To grant the application would be to render the Tribunal complicit in such abuse. A fair trial remained possible. The interests of justice and the overriding objective argued strongly against striking out the claims.[39]Because at one point the Claimant said that the Respondent’s treatment of him had damaged his mental health I explored that point briefly with him. He was very clear that it was relevant to his remedy claims, but it was no part of his case to admit misconduct and rely on his stated poor mental health as mitigation. He acknowledged no misconduct and prayed in aid no medical evidence. Analysis and conclusions[40]In my judgment, the Claimant’s intimidatory conduct in the call to Ms Topp on 11 October (whether through an agent or not) was wholly unacceptable and intolerable.[41]In addition, I find that the misconduct on 11 October 2024 was compounded by three exceedingly serious further breaches on 18 October, which involved aggressive and threatening behaviour and deception (as to the identity and status of the caller and as to the call being recorded). These were further, deliberate, calculated, repeated and flagrant breaches of both limbs of EJ Khan’s orders.[42]To my surprise, the Claimant sought to make much of the fact that, as the log suggests, some of the 87 calls were ineffective, resulting in little or no ‘talk time’. But his argument ignored the fact that every call was a breach of EJ Khan’s orders, which had explicitly and repeatedly prohibited him from contacting the Respondent directly. The most recent occasion on which he was warned about doing so was on 10 October 2024, the very day before numerous calls were made including that to Ms Topp. The timing reinforces the Respondent’s argument. It demonstrates a mentality contemptuous of the authority of the Tribunal and its insistence that the litigation be conducted in accordance with the overriding objective and ordinary norms of civilised dealing.[43]The voicemail call to the Respondent’s solicitor a few weeks later was yet another gross breach of the requirement to use neutral language. This was not a mere case of rudeness. The Claimant resorted to gratuitous abuse as well as intimidation (particularly the threat to attend her office ‘physically’ to ‘discuss disclosure’).[44]In addition, although it would, no doubt, be a mistake to make too much of the point, I do regard it as a troubling and, to an extent, aggravating, feature that the five most recent victims of the Claimant’s aggression (directly or through a man acting on his behalf) are all women.[45]Faced with a litany of grievous breaches of the Tribunal’s orders, I have looked hard for some explanation, or at least mitigation, for the Claimant’s misconduct, but none offers itself. He is an experienced litigator. He has been repeatedly warned about his behaviour. He has received numerous written orders bearing penal notices pointing out the possible consequences faced by those who disobey the Tribunal’s orders. And he presents as a conspicuously articulate and intelligent person who, on the face of things, must be taken to have known very well that the course of action on which he embarked on 11 October 2024 and pursued for a full week thereafter would inevitably place him, yet again, in clear and obvious breach of EJ Khan’s orders and put him at risk of penal measures.[46]It is also of note that the Claimant does not say that his conduct arises from some factor beyond his control. In particular, as I have recorded, he does not place any reliance on his stated mental health impairment. Here again, no mitigation is to be found.[47]Nor does the Claimant argue or suggest that the experience of finding himself responding to a striking-out application has had a chastening effect upon him. To the contrary, his position before me was entirely self-righteous and defiant. He did not acknowledge any lesson learned and maintained his consistent position that he was the sole victim in the litigation. The absence of any change of heart was exemplified at one point in the hearing before me, when he gratuitously accused Mr Caiden of being a defender of workplace abuse (I paraphrase). The remark was withdrawn but only because I insisted that it must be. He shows no sign of having mended his ways and I am entirely satisfied that any sanction short of striking out would result in him persisting in his wholly unacceptable behaviour.[48]In my opinion, this is one of those exceptional cases in which the offending party’s behaviour has been such that the proceedings must be struck out without reference to the question whether a fair trial is still theoretically possible (see the citation above from the Royal Bank of Scotland case). In my judgment, the Claimant has conducted the proceedings in a grossly unreasonable way and thereby forfeited his right to a determination of his claims on their merits. The language of the 2024 Rules, r38(1)(b) (which must be my primary guide) is satisfied. The power to strike out is, inherently, penal and this is one of those exceedingly rare cases in which the misconduct has been, and promises to continue to be, such that it is right to exercise the discretion to impose the penalty simply because the gravity of the case makes that the only just and proper course to take.[49]In any event, application of the three-stage test in Abergaze (cited above) leads me to an identical conclusion. Was there unreasonable conduct? Manifestly, there was. There is no need to repeat what has already been said.[50]Is a fair trial still possible? In my judgment the answer is no. The Claimant has shown utter contempt for the Tribunal’s processes. In flagrant breach of EJ Khan’s repeated orders and warnings, he has intimidated individuals, threatened them with personal liability, including criminal liability, and subjected them to other forms of abusive behaviour. He shows every sign of intending to continue to conduct the case in the same fashion if the claims are not struck out. He has forfeited the trust of the Tribunal not only by wilfully and repeatedly disregarding its orders but also, before me, by giving evidence on affirmation which he knew to be utterly false, in a misguided attempt to escape the consequences of his own behaviour. In all the circumstances, I consider it most unlikely that a fair trial could now be held. At the very least, the Claimant’s conduct has been such that there is a very serious risk that a fair trial would not be possible.[51]Is imposition of the draconic sanction of striking out a proportionate response to the Claimant’s misconduct? I find that it is. Indeed, given his stance before me, which offers no prospect of his behaviour being modified if the litigation is allowed to continue, I am unable to see any just and workable alternative.[52]For all these reasons, I am satisfied that the Respondent’s application is amply made out and it is in keeping with the interests of justice and the overriding objective to take the exceptional course of striking these claims out. Result[53]The claims are struck out. The proceedings are at an end. The April hearing is vacated.[1]By a judgment with reasons sent to the parties following a hearing on 13 January 2025, I struck out the Claimant’s claims. These reasons should be read with that judgment and those reasons. My decision to strike out the case was based on the Claimant’s conduct of the proceedings. I made findings on that conduct in my reasons, paras 17-36. My analysis and conclusions occupied paras 40-52. As can be seen, the matters which I had to address were not complicated.[2]The Claimant sent emails to the Tribunal on 4, 5 and 7 February 2025 requesting that the judgment be reconsidered. When that correspondence was shown to me by I directed that the Respondent’ comments should be sought. The solicitors for the Respondent duly submitted their observations in a letter of 18 February 2025.[3]I have had regard to the material referred to above. I am aware that the 1 Pursuant to the Employment Tribunals Rules of Procedure 2013, rule 67, corrections are made to accidental slips in paragraphs 2, 5, 14 and 17 of the reasons attached to the judgment sent to the parties on 10 March 2025. Claimant has directed other messages to the Tribunal. I have not given him permission to expand upon his application. Nor do I consider it reasonable or proportionate to treat the reconsideration application as a continuing conversation between the parties and the Tribunal. Accordingly, I have not read the further representations submitted by the Claimant.
The applicable law
[4]By the Employment Tribunals Rules of Procedure 2024 (‘the 2024 Rules’), rule 68(1) the Tribunal has power to reconsider any judgment where it is ‘necessary in the interests of justice’ to do so.[5]Rule 68(2) 70(2) provides that if the Tribunal considers that there is ‘no reasonable prospect of the judgment being varied or revoked’ the reconsideration application ‘must’ be refused and the Tribunal must inform the parties of the refusal.[6]At the heart of the Tribunal’s procedures generally is the ‘overriding objective’ of dealing with cases fairly and justly. This includes, so far as practicable, ensuring that the parties are on an equal footing, dealing with cases in ways which are proportionate to the complexity and importance of the issues, avoiding unnecessary formality and seeking flexibility in the proceedings, avoiding delay, so far as compatible with proper consideration of the issues, and saving expense (see the 2024 Rules, rule 3).[7]In Outasight VB Ltd v Brown [2015] ICR D11, Her Honour Judge Eady QC (as she then was), sitting in the EAT, observed that the wording of the rule (then rule 70 of the 2013 Rules) allowed Employment Tribunals a broad discretion to determine whether reconsideration of a judgment was appropriate in the circumstances. However, this discretion must be exercised judicially, ‘which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation’. The application[8]The application is enormous. Attached to the email of 4 February 2025 is a document 182 pages long. To state the obvious, this is not an example of a proportionate approach to litigation. I have considered remitting the matter to the Claimant with a direction for him to re-formulate his application in a proportionate way. On balance, however, I have decided that doing so would merely add to the verbiage already generated and delay disposal of the application. Accordingly, I have approached the application by seeking to draw out what appear to be the central arguments or themes.
Analysis
[9]Recusal? The Claimant has suggested that I should recuse myself on account of bias. I can well understand that he is disappointed by my judgment and disagrees with it. He is fully entitled to his views. But I see no basis for alleging bias – actual or apparent. I decline to recuse myself.[10]Procedural irregularity – ‘ambush’? The Claimant seeks to argue that he was not on notice that the Respondent’ strike-out application would be considered on 13 January 2025. This is a surprising complaint. There was no hint of it on 13 January 2025. To the contrary, both parties fully understood that the application was to be considered at that hearing. The procedural debate (such as it was) was merely about how and in what order the various applications would be considered. (I will shortly return to this aspect.) The background events are not complicated. In early October 2024 the Tribunal was contemplating listing a public preliminary hearing to resolve a dispute about privilege and deal with a number of other outstanding case management questions. On 17 October the Respondent issued its strike-out application. On 12 November (by which time a preliminary hearing had been listed for 10 December) the Respondent asked for the hearing to include consideration of their strike-out application. On 19 November the Claimant wrote to the Tribunal listing the matters which, he said, should be addressed at the forthcoming hearing. Item 2 on his list was the Respondent’s strikeout application. The Respondent’s written submissions addressing the strike-out application and other matters were delivered to the Claimant on 29 November 2024. The one-day allocation for the 10 December hearing was extended to 2 days but in the event the hearing had to be postponed. A fresh two-day listing was fixed for 13 to 14 January. It was that hearing that came before me. I am satisfied that there was no ‘ambush’. The parties were fully on notice that the strike-out application would be before the Tribunal on 13 January.[11]Procedural irregularity – conduct of the hearing The Claimant appears to complain that the way in which the hearing was conducted on 13 January 2025 was unfair. I see no basis for that suggestion. He was given a full opportunity to cross-examine Ms Topp on the evidence which she was called to give (which related to the conduct on which the strike-out application was based). I did not permit cross-examination on wider matters pertaining to the merits of the Claimant’s claims because they were not relevant to the questions which I had to decide. The Claimant was also given a full opportunity to resist the strike-out application in closing submissions. There was at the start of the hearing a discussion about the order in which the various procedural points and applications should be addressed. I explained to the Claimant my view that the sensible course was to consider the strike-out application first. If it succeeded, the case would fall at that point. In those circumstances, the residual points would become academic and so would not need to be addressed. Conversely, if the strike-out application failed, we would then know that we were dealing with a ‘live’ dispute and I would address all outstanding case management issues that required attention. I thought that the Claimant was eventually persuaded that this was the right course to take. In any event, I am satisfied that it occasioned no unfairness to him. In my judgment, there is no basis for the argument that it is necessary in the interests of justice to reconsider my decision of 13 January 2025 because of some procedural irregularity at the hearing on that date.[12]Misconduct on behalf of the Respondent? The Claimant appears to believe that the representatives of the Respondent have repeatedly and over an extended period behaved improperly in the performance of their professional duties on behalf of their client. I am bound to say that I have not been able to identify any coherent allegation of wrongdoing. In any event, if there ever was any such impropriety, the proper course would have been to raise the matter with the individual(s) and/or organisations concerned, any relevant regulatory body and, possibly, the Tribunal. And it would obviously have been hopeless to suggest that the Claimant’s misconduct which ultimately resulted in his claims being struck out was somehow caused by any wrongful act or omission on the part of the Respondent’s representatives. (For the avoidance of doubt, I did not understand him to make that allegation since his stance was to deny that he had misconducted himself at all.)[13]Unfair or impermissible sanction? I fully accept that the Claimant considers my decision to strike his claims out as unfair. But that is not a reason to reconsider my decision. It was based on a careful assessment of the central factors. For the reasons I gave, arrived at findings of fact on the evidence before me and, on the basis of those findings, concluded that the (undeniably draconic) penalty of a strike-out order was, in the most unusual circumstances of this case, the proper and just outcome. There is no arguable reason to revisit the matter at the Employment Tribunal level.[14]A new case – a change of heart? There is a certain tension within the Claimant’s case on reconsideration. In part, he appears to signal a change of heart and a willingness to behave properly if the strike-out judgment is revoked. But in part he continues to strike a defiant pose and paint himself as the innocent victim of wrongdoing by the Respondent and its representatives. Given the long history of misconduct by him in this litigation (to which I referred in my original reasons) I am far from persuaded that there is here a genuine change of heart. His recent step of issuing fresh proceedings against some 18 individuals employed (or formally formerly employed) by the Respondent does not suggest to me a new spirit of constructive engagement. Nor, in any event, would I regard a post-judgment change of heart as warranting reconsideration – certainly on the facts of this case. The time for a change of heart was before the 13 January hearing.[15]A new case – medical evidence? As I noted in my original reasons (para 39), I raised with the Claimant on 13 January a question relating to his mental health and whether he sought to rely on any medical ground in responding to the strike-out application. His response was unambiguous in denying any form of misconduct and thus not praying in aid any medical explanation for what might otherwise have been seen as reprehensible behaviour. In support of his reconsideration application, the Claimant now produces some medical evidence pointing to some difficulties with alcohol in 2023 and, in November 2024, the prescription of anti-depressant medication. But, even now, he does not acknowledge his misconduct, let alone put forward any cogent evidence to the effect that his behaviour can be explained by some medical problem.
Conclusion
[16]Having considered this application with care, I am quite satisfied that it must be refused. In essence, the Claimant’s case comes down to little more than his view that my original decision was wrong. The discretion to reconsider decisions was not created to give disappointed parties a second bite of the cherry. It must not be permitted to undermine the cardinal principle there needs to be finality in litigation. The strike-out application has been carefully canvassed and considered and a fully reasoned decision given on it. Ordinary considerations of justice and in particular the factors to which the overriding objective is directed all argue against entertaining this reconsideration application.[17]Further and in any event, for the reasons fully set out in my original judgment, I am satisfied that there is no reasonable prospect that, following a reconsideration hearing, my decision to strike out the claims would be varied or revoked. Accordingly, I must dismiss the application (see the 2024 Rules, rule 68(2) 70(2)).[18]If my decision was wrong in law, the Claimant will, no doubt, be vindicated on appeal.