in person The Respondent : Mr D Craig QC, CounselClaimantGoogle UK LtdRespondent
Before
Employment JudgeIn person for claimantDate 4 May 2022
JUDGMENT
THE JUDGMENT OF THE TRIBUNAL IS THAT - The claimant’s application for interim relief pursuant to sections 103A and 128 (1) of the Employment Rights Act 1996 is dismissed.
REASONS
[1]The Tribunal has been provided with the following documentation by the parties for the purposes of this Preliminary Hearing: -1.1 The claimant: -(1) the claimant’s witness statement/ application for interim relief (“the claimant’s application”) and(2) the claimant’s documents bundle (“CDB”).1.2 The respondent: - (1) the respondent’s documents bundle (RDB”) (2) the respondent’s pleadings bundle (“RPB”)(3) the respondent’s bundle of authorities (“RBA”)(4) the respondent’s occupational health bundle (“ROH”)(5) the respondent’s skeleton argument (“RSA”)(6) Witness statement of Anna Frazer ( People & Culture Partner) and(7) Witness statement of Tim Lillicrap (Senior Staff Research Scientist).[2]The documents (where relevant) are referred to below accordingly.
Introduction
[3]By a claim form which was presented to the Tribunals on 8 December 2021 (paragraphs 1- 12 of the RPB), the claimant brought claims which included claims for discrimination because of disability, constructive dismissal, whistle blowing and interim relief (paragraph 8 at pages 6- 7 of the RPB). The claimant stated in her claim form that she had been employed by the respondent as a software engineer from 1 June 2020 and that her employment was due to end on 17 December 2021. The claimant’s claim form was not accompanied by an ACAS Early Conciliation Certificate (“ACAS Certificate”) at that time.[4]The claimant provided further information in support of her claims including various medical reports relating to her mental health. These included a report from a consultant psychiatrist dated 6 December 2021 (pages 29 – 30 of the RPB) in which it stated that, after review that day, it had been agreed that the claimant required urgent inpatient admission together with further assessment therapy.[5]Following subsequent correspondence between the claimant and the Tribunals, the claimant’s complaint of unfair dismissal and claim for interim relief were accepted by the Tribunals. The remaining claims were however rejected pending receipt of an ACAS Certificate.[6]On 14 December 2021, the respondent was notified of the claimant’s application for interim relief and the parties were given notice that the matter had been listed for an interim relief hearing by video for one day on 7 January 2022 (pages 140 -142 of the RPB bundle).[7]The claimant’s remaining claims were subsequently accepted by the Tribunals, on reconsideration, on 23 December 2021 (page 153 of the RPB), following the submission of an ACAS Certificate (page 144 of the RPB).[8]On 5 January 2022 (pages 304 – 305 of the RPB) the Tribunal advised the parties that the purpose of the Interim Hearing was to determine the single issue of whether “the claimant should be temporarily reinstated into her role because it is likely that the tribunal will find that she was unfairly dismissed because she was a whistleblower”. The Tribunal drew the claimant’s attention to sections 128 - 131 of the Employment Rights Act 1996 (“the Act”) and Rule 95 of Schedule 1 to the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (“the 2013 Regulations”) including that it was unlikely that oral evidence would be heard and that the decision on whether to grant interim relief was likely to be based upon documents and submissions.[9]The interim relief hearing on 7 January 2022, together with a subsequent hearing on 2 February 2022, were postponed at the claimant’s request on medical grounds in the light of the claimant’s mental health conditions and associated hospital admission. The claimant describes herself as having High Functioning Autism together with diagnoses of severe anxiety and depression and PTSD (as referred to at paragraphs 17 – 18 and 24 of the claimant’s application). The claimant further states in the application that she was detained under section 2 of the Mental Health Act on 9 December 2021 and remained in hospital until 4 March 2022 at which time she was discharged with ongoing treatment and therapy (paragraph 26 of the claimant’s application)[10]The claimant made multiple applications to amend her claim form/ particulars of claim. The latest permitted Grounds of Complaint / Application for Interim Relief (“the Grounds of Complaint”) which the respondent calculates is the 9th version of the claimant’s grounds of complaint is at pages 313 – 346 of the RPB. The claimant is a litigant in person, however it appears that the claimant has had the assistance of Counsel with regard to the preparation of at least one previous version of the grounds of complaint (page 191 of the RPB).[11]The respondent’s Response/ accompanying Grounds of Response dated 14 February 2022, in which the allegations are denied, (“the Response”) is at pages 350 – 411of the RPB. The conduct of the Hearing[12]The Hearing was conducted, with the consent of the parties, by CVP. The Tribunal raised with the claimant at the commencement of the Hearing whether she required any adjustments to the conduct of the hearing by reason of her health. The claimant confirmed however that she did not require any such adjustments. The requirements of section 128 of the Act[13]It was agreed that: -(1) for present purposes, the effective date of termination of the claimant’s employment was 17 December 2021 and(2) the claimant’s claim form (which includes claims for unfair dismissal for making protected public interest disclosures pursuant to section 103 A of the Act and interim relief) was presented on 8 December 2021. It was accepted by the respondent that the requirements of section 128 of the Act had been fully complied with by the claimant and that the Tribunal therefore had jurisdiction to determine the claimant’s application for interim relief. The claimant had not, initially, obtained an ACAS Certificate. The respondent accepted however, that in the light of the nature of the claims an ACAS Certificate was not required for such purposes. Documents and Associated issues[14]The parties brought to the Hearing the documentation identified at paragraph 1 above which included voluminous files of documents from both parties ( the CDB - which included pleadings- 807 pages and the RDB – 534 pages together with a RPB of a further 411 pages). The Tribunal reminded the parties of the summary nature of the application and that the matter had (without objections from the parties) been listed for one day. The Tribunal explained that in the circumstances, it could only have regard for the purposes of the Hearing to documents identified by the parties. The parties also submitted the signed witness statements referred to at paragraph 1 above. The Tribunal however reminded the parties that it would be inappropriate, in the light of the provisions of Rule 95 of Schedule 1 of the 2013 Regulations to hear oral evidence. The statements were therefore admitted as written representations only (with no evidence given on oath) and were utilised by the Tribunal to assist its understanding of the case. The Tribunal was unable to access the respondent’s documentation (other than the skeleton argument) prior to the Hearing because of password related issues.[15]After clarifying the issues with the parties, the Tribunal rose to undertake further reading prior to the oral submissions of the parties. This Judgment was reserved as there was insufficient time for the Tribunal to consider all relevant documentation or reach/ prepare its decision. The Tribunal sat until 18.10 in order to complete the oral submissions of the parties. The respondent confirmed that in the event that the claimant’s claim for interim relief was successful it was not prepared to reinstate the claimant. It was therefore agreed that if the claimant’s application for interim relief was successful the Tribunal would make an order for the Continuance of the claimant’s contract of employment in accordance with the provisions of section 130 of the Act and that, in such circumstances, the Tribunal would convene a short CVP hearing to allow the parties to make representations regarding the terms of any such order. It was further agreed that the Tribunal would also arrange for the matter to be listed for a further Hearing to deal with the future conduct/ listing of the case.
The Law
[16]Statutory provisions - the Tribunal has had regard in particular to sections 43 B (1) (a)- (f) 43 C – 43 H and 103A (protected public interest disclosures) section 95 ( circumstances in which an employee is dismissed) and sections 128 – 130 (interim relief provisions) of the Act.[17]The Tribunal has also had regard as appropriate to the legal authorities contained in the RBA together with the further guidance contained in His Highness Sheikh Khalid Bin Saqr Al Qasimsi v Ms T Robinson UK EAT/ 0283/17(interim relief application for making protected public interest disclosures). The claimant did not seek to rely on any further legal authorities.[18]The Tribunal has reminded itself in particular of the following: -(1) A Tribunal will not normally hear oral evidence on an interim relief application.(2) The application has to be determined expeditiously and on a summary basis.(3) The Tribunal has to do the best it can with such material as the parties have been able to deploy and to make as good an assessment as it is able to do so.(4) The Tribunal has to be careful to avoid making findings of fact that might tie the hands of the Tribunal which is ultimately charged with the determination of the substantive merits of the case.(5) The Tribunal is required to decide whether it is likely that the claimant will succeed at a full hearing of the unfair dismissal complaint. For these purposes “likely “does not mean “more likely than not” but connotes a significantly higher degree of likelihood. The test to be applied is whether the claimant has a pretty good chance of success at the full hearing.(6) When interim relief is sought in a claim relating to protected public interest disclosures (as in the present case) the claimant must show that it is likely that – (a) the Tribunal will find that he/ she has made protected public interest disclosures for the purposes of section 43B – H of the Act (including that he/ she has made qualifying disclosures for the purposes of section 43 B of the Act) and also (b) that the making of such protected public interest disclosures was the principal reason for the claimant’s dismissal. The claimant’s pleaded case for the purposes of interim relief[19]The claimant’s current pleaded case of unfair dismissal is set out at paragraph 15 of the Grounds of Complaint (page 333 of the RPB).[20]The claimant’s primary pleaded case is that she was unfairly dismissed by the respondent on or about 17 November 2021 with one month’s notice (paragraph15.1 ). The claimant further alleges that “The real reason” for her dismissal was, “either her disability, and/or in the alternative for a reason arising from her disability (outbursts set out above) and /or because she had made protected disclosures and /or because she was protecting her mental health from danger” (paragraph15.2 )[21]The claimant’s alternative position is that in the event that the claimant was found to have resigned on or around 17 November 2021, she was forced to do so by reason of the respondent’s breach of the implied term of trust and confidence. The claimant relies for such purposes on the allegations of discrimination/ detriment pleaded in the Grounds of Complaint as the relevant breaches of contract. These are pleaded at paragraph 6 of the Grounds of Complaint (page 341 of the RPB). Two of the four pleaded acts of discrimination / detriment are alleged to have occurred prior to the alleged constructive dismissal on 17 November 2021 and are therefore relevant for the purposes of this application in respect of the constructive dismissal claim namely:-(1) “From the 10th November 2021 onwards, Pushed her to participate in disciplinary investigation despite apparent mental health challenges and said would do so even in absence of OH assessment.”(2) “Harassment in IA Onsite meeting on 11 November 2021 where an autistic person was compared to a chimpanzee”.[22]The alleged protected public interest disclosures (PIDs) relied upon the claimant are pleaded at paragraph 16 onwards in the Grounds of Complaint (pages 334 – 340 of the RPB). These amount to around 40 alleged PIDs. The claimant (erroneously) contends (at paragraph 17 of the Grounds of Complaint – the application for interim relief) that the respondent does not dispute that the claimant was dismissed by the respondent (expressly or constructively). The claimant further pleads for the purposes of her interim relief claim that the alleged PIDs were the principal reason for her dismissal (express or constructive) which was accordingly automatically unfair contrary to section 103 A of the Act.[23]In the claimant’s application/ her oral submissions the focus of the claimant’s contentions regarding the termination of her employment were that :-(a) there was no actual resignation/ that she did not intend to resign (paragraph 15 of the application) and/or (during her oral closing submissions) that her email dated 17 November 2021 was submitted in the heat of the moment at a time when she was mentally unwell and should have been treated as such/ rescinded by the respondent and(b) she was constructively dismissed (documents 120- 121 and 205 of the CDB) as she felt that she had no alternative but to resign in the light of the imminent threat to her health and safety as the respondent continued to pursue disciplinary proceedings notwithstanding that it was aware of her mental health condition and the issues had previously been resolved with Mr Komarek.[24]The claimant set out in Section 6 of the application (pages 15 – 27 of the application) the PIDs upon which she sought to rely for the purposes of the interim relief application which amount to around 60 alleged PIDs identified under 15 headings. The claimant sought to justify the increase on the basis that any additional documents identified in Section 6 of the application were all connected/ related to those PIDs already identified in the Grounds of Complaint and requested the Tribunal to consider all of the PIDs for the purposes of the interim relief application. The respondent contended that this constituted a significant increase/ extension in the PIDs previously relied upon by the claimant in the Grounds of Complaint (to which the respondent had endeavoured to respond in its response).[25]The claimant was permitted, strictly for the purposes of this application, to address the Tribunal on the alleged PIDs identified in the application and the respondent was given an opportunity to respond accordingly. Going forward, it may however be necessary (if the claimant continues to propose to rely on the additional alleged PIDs and the respondent objects) formally to apply to the Tribunal for leave to amend her claim form further. The respondent’s position for the purposes of the interim relief application[26]The respondent denies the claimant’s claims including that the claimant was dismissed (whether expressly or constructively) for making protected public interest disclosures /that she has a pretty good chance of success in respect of such claims such as to entitle her to interim relief. The respondent’s primary contention is that the claimant terminated her employment with the respondent by way of a valid unambiguous resignation on 17 November 2021 which took effect on notice on 17 December 2021. The respondent’s response (which includes its reply to such matters) is at pages 397 – 411 of the RPB) .[27]The Tribunal accordingly identified at the commencement of the Hearing that there are the following principal areas of dispute between the parties for the purposes of the interim relief hearing namely:-(1) Whether the claimant resigned or was dismissed (expressly or constructively).(2) If the claimant was dismissed (expressly or constructively), whether the principal reason for any such dismissal was because she had made protected disclosures. The claimant says the protected disclosures which she made during October/ November 2021 were the principal reason for her “dismissal”. The respondent says any protected public interest disclosures were not the reason for any such dismissal (which was because the respondent reasonably believed that the claimant had resigned) and, in any event, that any action which was taken against the claimant was because of the manner in which she raised any concerns (and not the making thereof).(3) There is a further dispute between the parties as to whether the claimant, in any event, made any disclosures/ qualifying disclosures for the purposes of sections 43 A/ B of the Act. The respondent says that the claimant did not make any disclosures/ qualifying disclosures for such purposes. Relevant information[28]Strictly for the purposes of determining this application for interim relief, the Tribunal has taken into account the information set out below which has primarily been taken from the documents which have been provided by the parties for the purposes of this Hearing. The Tribunal has not heard any evidence on oath in this case and the information below is therefore not intended, and should not be regarded, as findings of fact. Further, the information is not, in anyway, binding on the Tribunal that subsequently determines the substantive merits of the case.[29]The Tribunal has concentrated for purposes of the interim relief application on the period between 1 October 2021 and 17 November 2021 as this is the period during which the claimant contends that she made the majority of her alleged protected disclosures, and the alleged “resignation/dismissal” took place. The claimant’s return to work in September 2021[30]Following a period of sickness absence and the receipt of OH and associated medical advice, the claimant returned to remote working on a phased return in early September 2021. The claimant continued to be based in India with her family. Following the claimant’s return to work there were discussions between the parties concerning the work project to which the claimant should be assigned. Early October 2021[31]On 1 October 2021, the claimant raised concerns in a message exchange with her manager, Mr Stanforth, regarding her proposed assignment to the Cognition project. Mr Stanforth stated in response that the respondent believed that the project offered the claimant the best opportunities and support to grow, and that the decision would not be reviewed for 4 to 6 weeks. The claimant continued to raise concerns about her assignment to the project. The claimant concluded the exchange of messages by stating that she did not agree with the assignment and that: - “ I am happy to quit the job as I have not been in good health or happy since I joined. I cannot continue like this. I can’t waste more time. And my health” (pages 241 – 242 of the RDB).[32]Later that afternoon the claimant emailed Mr Stanforth Ms Frazer, People & Culture Partner and other managers (page 260 of the RDB) in which she stated as follows:- “Hi – I have decided to call it quits for now. I had been going through lot of mental stress and deterioration in health and facing lot of stereotype at work in my conversations with colleague to an extent I no longer feel comfortable to communicate. I want to prioritize being happy and learning than being made to feel I am not competent. It was a good opportunity to see a new type of firm and people:)” Thanks [name deleted]”[33]Mr Stanforth replied to the email (also at page 260 of RDB) as follows:- “Dear [ name deleted] I am sorry that you are feeling this way. Let’s discuss this on Monday and work out the best way to proceed Robert”.[34]There was a further exchange of emails between the claimant and Ms Fraser on 1 October 2021 (page 259 of the RDB). The claimant stated in her email that her research had indicated that performance went down as a result of unhealthy stress levels and that a lesson to be learnt from this was that when a colleague started to get low and depressed, and productivity got low they should be asked to stop and disconnect completely which had not happened in her case in the period from January to April. Ms Frazer responded by expressing her concern for the way in which the claimant was feeling. Ms Frazer further stated that the team had taken every effort to support the claimant including working with OH to support her to return to work and to succeed in her role at the respondent and invited the claimant to identify the nature of any further support required at that time. 4 October 2021 and subsequently[35]The claimant sent a detailed email to Ms Frazer (which she copied to Mr Stanforth and other managers) on 4 October 2021 entitled “ Raise notice to resign from the job” which is at page 258 of the RDB. In brief summary, the claimant stated that whilst she acknowledged that the management had made efforts during the previous 2-3 months to support her this was not the case in January to May 2021 and raised concerns regarding the treatment and lack of support which she stated that she had experienced including that the management had failed to take proper care of her wellbeing and that support was not given until she had reached extremely high levels of stress and anxiety including multiple anxiety attacks. The claimant summarised at the conclusion of her email 5 areas of stated management failings including bad and stereotypical work culture and lack of experienced structures around employees’ wellbeing together with unempathetic colleagues and team mates.[36]The claimant had a meeting with Mr Stanforth on 4 October 2021. Mr Stanforth’s notes of the meeting are at pages 115 – 116 of the RDB. In brief summary, the notes state that Mr Stanforth described to the claimant other options which were open to the claimant as an alternative to resignation including time off and reduced hours and that the respondent wished to ensure that the claimant had considered all other options before committing to such a route. Mr Stanforth’s notes also state that there was a discussion regarding the claimant’s concerns regarding the project assignment and that Mr Stanforth acknowledged that the work place concerns which she had raised were serious and would be investigated.[37]The documents indicate that over the following days the claimant continued to raise concerns regarding her assignment to the Cognition project and also raised concerns via the respondent’s Slack group messaging system regarding the way in which she believed that she had been managed. The documents also indicate that the claimant was requested during this period to refrain from raising such matters via the group messaging system and to raise any concerns via the respondent’s formal grievance procedures (page 269 of the RDB). 6 October 2021 and subsequently[38]On 6 October 2021 the claimant messaged her line manager Mr Stanforth stating that she felt that she had been manipulated regarding the project assignment (pages 244/ 245 of the RDB). The claimant also stated that she did not believe that she had received proper support from management or P&C as she had not received regular checks to see how she was doing, was being forced to move projects despite raising concerns and that she was not sure whether she was suffering from racism. The claimant further stated that she would quit if she was forced to work on the Cognition project, that she felt that she had been exploited since she joined and that she was going to raise a grievance of racial bias as she stated that she suspected that it had interfered with her well – being and career. In the reply, Mr Stanforth encouraged the claimant to discuss her concerns with Ms Fraser.[39]The documents indicate that the respondent continued to have meetings/ discussions/ exchange emails with the claimant over the following days. The claimant stated in her email to Ms Fraser on 12 October 2021 that she was still considering keeping the notice of resignation (page 290 of the RDB). The claimant also stated in her email to Mr Stanforth on 12 October 2021 that she remained concerned about the low level of work on the criterion project and that she had expressed in her discussions regarding the role that if she did not find the level of work to be right for her, she was happy to quit the job and find a better/ right opportunity for her (page 247 of the RDB). 15 October 2021 and subsequent days[40]On 15 October 2021, Ms Frazer emailed the claimant setting out her understanding of the meetings which she had had with the claimant on 5 and 6 October 2021 which she stated had been for the purpose of sharing the claimant’s workplace concerns and the reasons behind the claimant’s email of resignation dated 1 October 2021. This document is at pages 295 – 297 of the RDB.[41]In brief summary, the email states that :-(a) that there was a discussion regarding the claimant’s assignment to the Cognition project and associated proposed further discussions(b) it was Ms Frazer’s understanding that project 1A ( the claimant’s previous project assignment) would not be a suitable option to support the claimant’s career growth at that time because the claimant had previously expressed dissatisfaction regarding the project and expressed concerns about the colleagues with whom she had worked on the project(c) a summary of what Ms Frazer understood to be the claimant’s workplace concerns(d) that the claimant had indicated, after having considering the respondent’s grievance procedure which Ms Frazer had sent to her, that she did not wish to raise a formal grievance and ( e) that, in the light of the serious nature of some of the concerns which the claimant had raised, that the respondent may nevertheless still need to look into them. The claimant was asked to confirm whether there was anything that Ms Fazer had omitted to include. The claimant was further advised that Ms Frazer had set time aside on 19 October 2021 to discuss the next steps with the claimant. The email further stated that the claimant had declined the meeting and informed Ms Frazer that she did not wish to proceed with the grievance process/ did not consider that it would be beneficial.[42]In subsequent dealings/ exchanges of messages with Ms Frazer and Mr Stanforth on 15 October 2021 and during the following few days, the claimant continued to express her unhappiness at the respondent including that she did not think that the job was right for her and that she wanted to quit the job/ was happy to leave (pages 247, 251 and 253 of the RDB). The claimant also stated in a message on 17 October 2021 that the only way that she could stay was if she was allowed to return to the IA project for a whole year with no conversations about change (page 252 of the RDB). 19 October 2021[43]In a message to Ms Frazer dated 19 October 2021 (RDB page 301), the claimant questioned whether the job was right for her or whether she was not well and overreacting to things. The claimant expressed her continuing unhappiness at the respondent including that she did not feel safe or happy, that she was unable to move on from earlier clashes with colleagues and that she had not previously experienced anxiety attacks.[44]Around this time former colleagues of the claimant on the IA team raised concerns with the respondent about the messages which they stated the claimant was sending/ deleting on the respondent’s Slack messaging system (pages 302 and 311/ 312 of the RDB). Meeting on 21 October 2021[45]Ms Fraser and Mr Stanforth had further discussions with the claimant on 21 October 2021. The notes of the meeting indicate that the respondent discussed the claimant’s concerns regarding the proposed project and stated why they did not consider it would be appropriate for her to return to IA (pages 318- 320 of the RDB). Ms Fraser also emailed the claimant on 21 October 2021 (page 313 of the RDB) concerning their discussions on 19 October 2021. The letter states that they had discussed the claimant’s recent resignation and that the claimant had shared with Ms Frazer that the claimant was unsure what to do about her resignation - whether she wished to continue to work with the respondent and if so in what role. The letter also states that Ms Frazer asked the claimant for a decision by 25 October 2021. The letter further states that they discussed the other workplace concerns which the claimant had raised, that the claimant did not wish to raise them as a grievance as she believed that it would have a negative impact on her wellbeing and that the respondent indicated that it nevertheless had a duty to follow up on such concerns as she had raised concerns about feeling unsafe. 25 October 2021[46]Ms Frazer had a meeting with the claimant on 25 October 2021 (page 325 of the RDB). The notes of this meeting state that they discussed the claimant’s health. They also state that they discussed the claimant’s request to return to the IA project and why the respondent did not consider it to be an option including as the respondent had previously taken the claimant off the project at the claimant’s request. Ms Frazer subsequently wrote to the claimant regarding the rescheduling of her Occupational health follow up.[47]On 25 October 2021 a member of the IA team raised further concerns with the respondent about messages which he stated the claimant was sharing on the Slack message system (page 311 of the RDB). 26 October 2021[48]On 26 October 2021Mr Stanforth emailed the claimant. Mr Stanforth stated that he had been informed that the claimant’s project assignment was still an issue and he gave instructions for the work which the claimant was required to undertake whilst he was on leave pending resolution of the issue. Mr Stanforth also stated that he understood that the claimant had been messaging a member of the IA Team and reminded the claimant of his previous instructions regarding such contacts and that she should restrict direct messaging to what was relevant to her currently assigned work (page 327 of the RDB).[49]Ms Frazer continued to be in contact with the claimant during this period including with regard to a follow up appointment with occupational health and the claimant’s assessment for autism. On the afternoon of 26 October 2021, the claimant messaged Ms Frazer stating that she had been texting two of her former colleagues on the IA team quite extensively over the previous couple of weeks and asking Ms Frazer to let them know that she was sorry and was trying to fight the negativity (page 330 of the RDB). Ms Fraser replied that she believed that the team would know from the claimant’s messages that the claimant had apologised. The claimant informed Ms Frazer that she was taking a day’s leave and Ms Frazer encouraged the claimant to disconnect and rest in the light of her anxiety. 28 October 2021[50]On 28 October 2021 the claimant messaged Ms Frazer stating that “I want to quit the job. It’s not been a good experience.” Ms Frazer replied offering to set up time to speak to the claimant (page 333 of the RDB). 29 October 2021[51]On 29 October 2021 a research scientist at the respondent emailed Mr Komarek, a senior manager, to express concerns about the contents of the slack messages which he stated that the claimant had shared on the respondent’s random slack message channel (which he stated could be accessed by nearly 900 people) and contained remarks which he considered to be “racially disparaging, generalizing and offensive” (page 372 of the RDB). The research scientist asked that someone should sit down with the claimant informally to let her know that some of the messages crossed the line. The associated messages, which express views of a racial nature, are at page 373 of the RDB. The research scientist sent a further message to Mr Komarek and also to other senior managers in the respondent later that day advising them that the claimant was continuing to send what he considered to be “hostile and inappropriate messages on Slack”. The associated messages are at page 371 of RDB.[52]Ms Frazer messaged the claimant later that day (page 364 of the RDB) stating that she had seen complaints from staff about messages that the claimant had sent on the random and general slack channels. Ms Frazer further stated that the claimant had been warned by her and Mr Stanforth about sending inappropriate messages on Slack because of the impact on others. Ms Frazer informed the claimant that they would discuss the messages on Monday and asked the claimant to refrain from sending any more messages on Slack over the weekend.[53]In the claimant’s subsequent response, she stated that she had realised that some of the comments might not be appropriate and had therefore deleted them and said sorry. The claimant also stated that she was struggling because of the state of health. Ms Frazer encouraged the claimant to disconnect from work and seek support from mental health professionals (page 365 of the RDB).[54]A further employee notified Ms Frazer on 29 October 2021 of his concerns regarding the claimant’s messaging on the Slack channel (pages 367 – 370 of the RDB). 31 October 2021[55]On 31 October 2021 the claimant emailed Ms Frazer requesting a medical note for a two month “reset”. In her response on 1 November 2021, Ms Frazer asked the claimant to clarify what she meant and advised her that any medical note would have to be obtained from a medical professional. Ms Frazer also stated in the email that she had arranged an occupational health appointment for the claimant to speak to a doctor that morning to understand how the respondent could continue to support her but had been advised that the claimant had failed to attend (page 374 of the RDB.) 1 November 2021[56]On 1 November 2021 the claimant requested a copy of the medical note which had recommended her removal from the IA team.[57]On 1 November 2021 Ms Frazer received from a member of the IA team, copies of the claimant’s further messages on Slack. The messages related to alleged (unspecified) unfairness/ favouritism relating to opportunities to undertake presentations in the IA team (pages 309/310 of RDB).[58]Ms Frazer subsequently received a copy of further messages which the claimant had sent that day to members of the IA team which contain unparticularised comments relating to :-(a) her experiences at the respondent (page 309 of the RDB),(b) allegations of enslavement and exploitation (page 392 of the bundle) and(c) a subsequent exchange of messages between the claimant and a member of the AI team in which he advised the claimant of what he considered to be the disconcerting nature of her messages and negative impact on the team together with the claimant’s responses. The claimant asserted in such responses her right to express her views regarding unspecified inequalities and injustices and the adverse effect which the job was having on her life, how much it had brought her down as a person and how selfish, biased and unkind people were in the respondent (pages 307 – 308 of the RDB).[59]Ms Frazer messaged the claimant again on 1 November 2021(page 394 of the RDB) in which she stated that she had been made aware that the claimant was continuing to post on Slack channels when she had been asked not to do so including by way of clear feedback from Mr Stanforth. Ms Frazer instructed the claimant to stop messaging the IA team and to disconnect from work if she was unwell. The claimant responded that she was not a slave, that if something was wrong she had a right to raise it as long as at it did not wrong someone else and what they had done to her and was doing to others was wrong and that she was not scared to “flag” it. Ms Frazer replied that she had made it clear that they took her concerns very seriously and that the respondent had constructive and appropriate ways to raise concerns. Ms Frazer further stated that the claimant had cancelled a 1 to 1 with her that day which could have been used to address the claimant’s concerns.[60]The claimant continued to exchange messages with Ms Frazer on 1 November 2021 (page 396/399 of the RDB) in which she stated that she found the team / respondent exploiting/ cruel and fundamentally flawed. Ms Frazer encouraged the claimant to take time to rest. Ms Frazer advised the claimant that if she no longer wished to work at the respondent, they could talk about it once the claimant was back at work and in the meantime that it was best for the claimant to disconnect from Slack. Ms Frazer informed the claimant that she would allocate some time for them to talk with Mr Stanforth and asked the claimant to let her know if there was anything else she could do to support her. Ms Frazer further advised the claimant to refrain from sending any further potentially distressing messages which would be contrary to the organisational values of the respondent/was not helpful to the claimant and which, if they continued, could potentially be a conduct issue. Mr Frazer further stated that she had previously advised the claimant how to raise concerns.[61]The claimant replied that she had concerns relating to selection biases, however she did not want to say on what grounds, that she was scared and wanted to raise them for the benefit of others in the future. The claimant did not explain the nature of her concerns. Ms Frazer informed the claimant that if she had concerns it was important that she shared them so that they could be investigated.[62]The claimant concluded the exchange by stating that some people had been treated more favourably than others and that she wanted to leave the job which was a negative environment and had brought her down a lot (page 399 of the RDB). 2 November 2021[63]It was agreed on 2 November 2021 that the claimant would take a day’s sick leave as she had indicated that she was in very low mood and that the respondent would met with her on 3 November 2021 to discuss the next steps. Ms Frazer requested the claimant to refrain from sending unwarranted slack messages to other colleagues which she stated had been causing a lot of distress (page 401 of the RDB). 3 November 2021[64]The respondent exchanged further messages / correspondence/ had further discussions with the claimant on 3 November 2021. As part of the exchange Ms Fraser stated in an email responding to the claimant’s previous enquiries, that the decision to end her assignment to the IA team in June had been taken by management in the light of the claimant’s request and what was considered to be best for the claimant’s growth and productivity (page 410 of RDB). 3 November 2021[65]Mr Stanforth messaged the claimant stating that he understood that the claimant had been messaging a member of the A1 team and reminded her that they had instructed her not to message research leads directly except in relation to currently assigned work. The claimant replied that everyone was free to speak and questioned whether it was a law to which Mr Stanforth replied that it was an instruction. The claimant asked why the respondent wished to keep her in a box, questioned how the respondent could ask her not to speak and stated that she was not a slave and that they could not deny her opportunities (page 404 of the RDB).[66]The respondent’s note of the meeting with the claimant later on 3 November 2021 (page 407 of RDB) record that the claimant stated that her employment with the respondent had been a bad experience which had had a big effect on her health. The notes also state that Ms Frazer mentioned that the claimant was wanting to quit to which the claimant is recorded as responding yes as there were a lot of things which were wrong and she did not want to give more of her time and professional career. The notes further record that the claimant stated that she wanted to be placed in a team at the correct level and did not wish to return to the A1 team.[67]Ms Fraser wrote to the claimant following the meeting. This email dated 3 November 2021 is at page 413 of RDB. In summary, the letter stated that Ms Fraser and Mr Stanforth had explained that they felt that they had explored all available options including regarding alternative work and had done all that they could to support the claimant / her emotional wellbeing and that if the situation continued without the claimant engaging in the available options it would be detrimental to the claimant’s mental health. Ms Fraser further stated that if the claimant wished to resign from her role the next step would be for the claimant to finalise it in writing and that if the claimant decided to resign, they would want to ensure that her notice period was as comfortable as possible. Ms Fraser concluded her letter by reminding the claimant that she should take time to finalise her decision as it was a big decision for the claimant to make and that the respondent strongly believed that it was not in the claimant’s best interests to engage in communications on Slack during such period.[68]Later that day, the claimant messaged Ms Fraser enquiring about arrangements for returning office equipment to the London office. The claimant further stated that she agreed with Ms Fraser that she should give herself space and not engage in Slack (page 420 of the RDB). The respondent subsequently provided the claimant with copies of OH reports requested by the claimant that day (page 419 of RDB) and gave reasons for the respondent’s decisions in relation to the claimant’s fitness for work/ not to continue her assignment to the IA team after June.[69]During the course of 3 November 2021, the respondent received copies of further messages which the claimant had sent to a former colleague on the IA team ( page 305-306 of RDB) which included a question about the allocation of work within the IA team and a message stating that she should be blocking the job out of her life given how much it had brought her down as a person and how selfish, biased, short sighted and unkind people were at the respondent , that the job “makes me sick” , they should not try to scare her and “I have had enough”.[70]The claimant sent a message to Mr Komarek on the evening of 3 November 2021 setting out her requirements for a project assignment in order to remain with the respondent (page 423 of RDB). 5 November 2021[71]On 5 November 2021, the claimant contacted Mr A Fidjeland, Senior Director of Engineering. The claimant’s messages to Mr Fidjeland, in which she requested new management and team, are at pages 434 of the RDB. 6 November 2021[72]On 6 November 2021 Ms Frazer received copies of further Slack messages which the claimant had sent to a member of the IA team together with an email from his manager Mr Botvinick (pages 435 – 437 of the RDB) expressing concern about the welfare of the team member and questioning why the respondent had not been able to protect him from harassment. Many of the messages were timed after 9pm at night. The claimant questioned in the messages whether the IA team had asked management to remove her from the project in June 2021/ suggested that her removal had come from the team and made disparaging remarks about the character of the team. The messages also included unparticularised allegations of favouritism and bias and of a toxic environment which the claimant stated had caused her anxiety attacks and low confidence. 7 November 2021[73]Ms Frazer responded to the emails on 7 November 2021 advising that the matter would be addressed the following day (page 435 of the RDB). 8 November 2021[74]In an exchange of messages on 8 November 2021 the claimant informed Ms Frazer that she wished to raise a grievance against a member of the IA team. The claimant also asked whether the IA team had requested her removal from the team to which Ms Frazer replied that it was a medical decision that the claimant was not fit for work at the end of June 2021 and a management decision that it was better for the claimant’s wellbeing and productivity to have a fresh start on a new project when she returned from sick leave (page 439 of the RDB). 9 November 2021[75]On 9 November 2021, Ms Frazer sent the email to the claimant at page 442 of the RDB. In brief summary, Ms Frazer asked the claimant if she had reached a decision regarding her resignation or whether she needed any additional support to make the decision. Ms Frazer further advised the claimant that she was working on the basis that the claimant planned to remain with the respondent, that she wished to ensure that the claimant had ongoing support and asked the claimant to confirm when she would be available to meet with OH. Ms Frazer also acknowledged that the claimant had raised concerns regarding a former colleague in IA including that she might wish to raise a grievance and in stated that she was enclosing a copy of the relevant policy and offered to discuss the process with the claimant. 10 and 11 November 2021[76]Ms Frazer and Mr Stanforth held a meeting with the claimant on 10 November 2021 to discuss the claimant’s use of the Slack messaging system. Ms Frazer subsequently wrote to the claimant on 11 November 2021- this email is at page 448 of the bundle. In summary, Ms Frazer stated that although the claimant’s wellbeing was her priority it could not come at the expense of others and that the respondent had a duty of care to ensure that all employees behaved in a respectful manner. Ms Frazer stated that she and Mr Stanforth had, on more than one occasion, requested the claimant not to message her colleagues in IA or to participate in the IA Channels as she was no longer working on the project, they believed that it wasn’t helping the claimant’s welfare and, because her colleagues were finding it distressing. The claimant had however repeatedly chosen to ignore such instructions. Ms Frazer further stated that given the extent of the messaging and the ignoring of the respondent’s requests an investigation into potential breaches of the respondent’s code of conduct, which could lead to disciplinary action as previously warned, was warranted. Ms Fraser stated that she would arrange a follow up meeting with occupational health to make sure that the claimant was adequately supported during the process. Miss Fraser acknowledged that the claimant had indicated that she wished to raise grievances in respect of her time at IA and stated that she would arrange for someone to support her through such processes. 12 November 2021[77]On 12 November 2021 (page 425 of RDB) the claimant sent a lengthy message to Mr Komarek regarding the investigation into her messages. The email included a request that the matter was not formally investigated as the claimant stated that it would not have a positive impact on her confidence and happiness at work and would help to burn bridges. The claimant offered to apologise to the team members concerned whom she stated she was sure would understand. The claimant acknowledged that she had been warned but stated that she had not stopped because it was not in her control as work was making her sick as she had repeatedly shared. The claimant gave a further detailed explanation of her situation and why she believed that it would not be appropriate to take action against her. Mr Komarek acknowledged the claimant’s message and encouraged the claimant, who was off sick that day, to fully disconnect and rest over the weekend. At the end of the email Mr Komarek listed the contact details of potential internal and external sources of support. 15 November 2021[78]Mr Komarek had a discussion with the claimant on 15 November 2021. Mr Komarek’s notes of the meeting are incorporated into an email to Ms Frazer of the same date which is at pages 458 – 459 of the RDB. In summary, the notes state the following: - that the claimant had stated that she wasn’t causing anything but was responding to others, that she felt that IA was a toxic work environment and that she could not go through the investigation process which she believed that the respondent was trying to inflict on her and that everything was a consequence of her time at IA. The claimant stated that going forward, she wished to work with people who had stable scope and planning with a stable project period of around a year. The claimant stated that she had informed Mr Komarek that she would not continue working at the respondent if there was an investigation into her conduct. Mr Komarek advised the claimant that he was 99% sure that the investigation would continue however the claimant should confirm the position with Ms Frazer of P& C to be 100 per cent sure. The claimant reiterated that she would not participate in an investigation or remain working somewhere that felt that an investigation was appropriate given the mental challenges which she was facing. Mr Komarek concluded the discussion by stating that he would share the claimant’s need for clarity about whether the investigation would proceed and acknowledged that the claimant sounded very distressed. Mr Komarek stated that he hoped that the claimant would reach out to the counselling and mental health resources which he had previously shared with her.[79]On 15 November 2021, Mr Stanforth messaged the claimant to ascertain how she was and in response to which the claimant informed him that she was not feeling well. The claimant advised Mr Stanforth that she needed to “take a couple of meetings” to be able to understand her engagement at the respondent and he advised her that she could take such time (page 451 of the RDB).[80]On 15 November 2021, Mr Fidjeland emailed the claimant in response to her previous requests. This email is at pages 460 – 461 of the RDB. In summary, Mr Fidjeland stated that his understanding was that the claimant had been offered two different projects which should be viewed as good opportunities in terms of growth and development. Mr Fidjeland also stated that he did not see any merit in approving a change in line management at that time as he was satisfied that Mr Stanforth had been providing her with as much support as possible and that a change in line management would not change the issues which she had raised. Mr Fidjeland further advised the claimant that the appropriate way to address those issues was by following the respondent’s normal processes which he understood the claimant had initiated and in respect of which the respondent’s P& C team would be able to support her. Events of 17 November 2021[81]Ms Frazer contacted the claimant (at 10am) on 17 November 2021 to ascertain how she was and to advise the claimant of the potential next steps including, as Ms Fraser stated that the claimant had indicated the previous week that she did not wish to engage with Ms Frazer at that time, the name of an alternative point of contact. This email is at pages 475- 476 of the RDB. Ms Frazer also stated that in the light of the references during the previous week to the claimant being unwell, she was recommending to OH that they schedule a follow up appointment for the claimant. Ms Frazer further stated that she wanted to ensure that the claimant was fully supported and to obtain advice regarding the claimant ‘s fitness work / any required adjustments and fitness to participate in an investigation. Ms Frazer advised the claimant that if the claimant decided not to arrange/ attend the OH appointment it was likely that the respondent would progress the investigation without further OH advice and that it was therefore important that the claimant attended such an appointment so that she had the benefit of the third party advice and support for such purposes.[82]The claimant messaged Mr Komarek on the morning of 15 November 2021 (11.45 am) indicating that an informal resolution of the matter should have occurred (page 246 of the RDB).[83]The claimant replied to Ms Frazer by email on 17 November 2021 (12.05pm) (pages 474 – 475 of the RDB) stating that she had read the respondent’s policy which stated that an informal resolution with a manager was the first step before an investigation was started. The claimant further stated that she appreciated that an instruction was given to her but that did not resolve the fundamental reason of why she had been acting in a certain way. The claimant concluded her email by saying that she could not proceed with or agree to such an investigation given her mental health deterioration over the past 1.5 years and the future and present impact of such an investigation on her.[84]The claimant emailed Ms Frazer again by email on 17 November 2021 (12.36pm) (page 474 of the RDB) in which she stated as follows: - “ I would like to resign my post given the toxic work environment and its impact on my mental well-being. I cannot engage into a process that is neither right course of action nor a healthy thing for me. I have shared as much information and inputs as I could in writing and in person and more recently with Paul. I want to quit from this job and stand 100% clear that I would not participate in any investigation – [ name deleted]”.[85]The claimant also sent an email to a respondent global distribution list (which was also received by Ms Frazer as part of that list) on 17 November 2021 (12.50pm) (page 472 of the RDB) which stated as follows:- “ Say Bye Hi all, After a very difficult 1.5 years at the firm and experiencing an immense amount of deterioration in my mental and physical health as a result of bad management decisions I have decided to take a step back. I wanted to reach out to people I talked to and connected with and apologize for not being able to meet in person for this. I tried my best but I cannot bear the strain of work stress and need to protect myself as an individual. Wishing everyone the very best and lots of sunshine. Thanks, [ name deleted]”.[86]Ms Frazer replied by email on 17 November 2021 (1.10PM) as follows: - “Hi [ name deleted], thanks for your email. I’m just on a call, but I assure you that I’ll come back to you asap this afternoon. Many thanks Anna”[87]The claimant emailed Ms Frazer on 17 November 2021(at 1.46pm) as follows: - “hi I am 000 after 2PM. I hope not to receive any emails then”.[88]Ms Frazer emailed the claimant on 17 November 2021 (1.59PM) (page 473 of the RDB) as follows:- “Hi [ name deleted], I’m sorry to hear this, but I understand your decision and I confirm that we accept you resignation. I would like to chat to you about next steps and make sure you are supported – would you feel comfortable having a quick chat with me tomorrow so that I can talk you through that and any questions you might have? If you are not comfortable speaking to me about this, then we will proceed to confirm your decision to resign by letter, outlining next steps and what ongoing support is available to you should you feel you require it. Many thanks, Anna”[89]The claimant emailed Ms Frazer on 17 November 2021 at 8.03pm as follows: “ok we can talk in the morning” and again (at 20.05) “ I would like to talk on gvc once tomorrow before proceeding”.[90]The claimant emailed Ms Frazer on 17 November 2021 (at 8.07pm) as follows:- “I did not say I accept my resignation. I said that I want to appeal against the decision to start the investigation against me. Also my slack is not working without confirming with me about these things when I am 00o” (page 473 of the bundle).[91]The claimant emailed Ms Frazer again at 8.17 pm (page 478 of RDB) as follows - “I did not officially give my resignation. My email is not working. I am not well. I need to talk over GVc”.[92]Ms Frazer emailed the claimant at 8.35 pm (page 478 of the RDB) in which she stated that they could talk about the matter the following day as she was logging off. Ms Frazer advised the claimant to disconnect and look after herself and gave her a contact number at EAP if she needed any wellbeing support.[93]The claimant responded at 8.41 pm stating as follows : “ I don’t feel like talking to anyone that’s why I was being on 000. And being at work made me sick” (page 478 of the RDB).[94]The respondent disconnected the claimant’s access to the respondent’s systems on 17 November 2021. Subsequent events[95]There were subsequent exchanges of correspondence/ telephone discussions between the parties regarding the termination of the claimant’s employment including:-(a) the claimant’s email to Ms Frazer on 19 November 2021 (page 481 of the RDB) in which the claimant stated that “ I want my status of resignation to be withdrawn or on hold”,(b) a meeting on 29 November 2021 in respect of which it is recorded that the claimant stated that she did not agree with the respondent’s decision not to accept her retraction(page 486 of RDB) and(c) the claimant’s email dated 30 November 2021 (page 492 of the RDB) in which she stated that she did not wish to proceed with her resignation and disagreed with the respondent’s decision not to reinstate her role including as she never officially confirmed her resignation and as the respondent had placed pressure on the claimant for a formal investigation against her for misconduct for conduct for being mentally unwell.[96]Ms Frazer emailed the claimant on 1 December 2021 (page 495 of the RDB) in which she stated:- “As explained on Monday, your resignation has been accepted and we will not be accepting your request to rescind it. Your grievance will be investigated (……..) but this does not change our position on your resignation. You will remain on garden leave up until 17 December 2021, when your employment with DeepMind will end”.[97]The claimant subsequently emailed Ms Fraser and other managers on 3 December 2021 in which she referred to the law on heat of the moment resignations. The claimant also asserted that although she had never directly resigned the respondent continued to term it as a resignation and denied her a retraction which not only constituted unfair dismissal but also, having regard to the events of 14 November 2021 constituted constructive dismissal (page 497 of the RDB). The IA Onsite Talk[98]The respondent conducted an IA onsite training talk on 11 and 12 November 2021. The list of attendees is recorded at page 453 of the bundle. The list does not include the claimant. The respondent accepts, for the purposes of this hearing, that:-(a) as part of the programme there was Survey talk which covered the origins of human child development in relation to primates(b) the slideshow which accompanied the talk included the slide at page 454 of the RDB entitled “ What makes humans different ?”(c) during the talk the respondent played to the attendees a third party video about the works of Michael Tomasello (whom the respondent says is a developmental and comparative psychologist ) in which it was suggested that young children with autism found it difficult to learn certain behaviours which was a trait shared by chimpanzees. The submissions of the parties[99]The Tribunal has had regard to the written and oral submissions of the parties as referred to above and summarised further below. The conclusions of the Tribunal[100]The Tribunal has considered the claimant’s application for interim relief as follows :-(a) the manner of the termination of the claimant’s employment namely, is it likely that the claimant will establish at the full hearing that she was dismissed (expressly or constructively) by the respondent and(b) if so, the reason for any such dismissal namely is it likely that the making of protected public interest disclosures was the principal reason for any such dismissal (including whether the claimant made any such disclosures). The termination of the claimant’s employment[101]It is common ground that the claimant’s employment came to an end on 17 December 2021 however, the manner of the termination is in dispute. The claimant says that she was expressly or, alternatively, constructively dismissed by the respondent. The respondent says that the claimant’s employment came to an end by resignation.[102]The claimant’s primary case, as set out at paragraph 15 of the Grounds of Complaint (page 333 of the RPB), is that she was unfairly dismissed by the respondent on or about 17 November 2021 with one month’s notice (paragraph 15.1) including as any “resignation” was not an actual resignation / that it was, in any event, made in the heat of the moment as a result of the claimant’s mental health conditions.[103]The respondent’s primary case is that the claimant terminated her employment with the respondent by way of a valid resignation on 17 November 2021 which took effect on 17 December 2021. The respondent relies in particular on the contents of the claimant’s email to the respondent dated 17 November 2021 (paragraph 84 above and page 474 of the RDB).[104]The claimant does not rely on any specific written notification/ words of dismissal by the respondent. The claimant’s primary case for express dismissal appears to be that she was dismissed as there was no actual resignation on 17 November 2021 as she was only considering resigning. The claimant states at paragraph 15 of the application in support of such contention that:- “ What I actually said/ wrote was something like ‘ if the management will keep pushing me for a disciplinary investigation, I want to quit this job given its negative impact on my mental health.”[105]The claimant’s further/ alternative case, which was raised by her in oral closing submissions (albeit that it was previously referred to in the claimant’s email to the respondent on 3 December 2021 – paragraph 97 above) was that it was not, in any event, a valid resignation as any resignation was made in the heat of the moment in the context of the claimant’s serious mental health conditions and the respondent’s continued pursuit of a disciplinary investigation notwithstanding such conditions.[106]The respondent’s position is in summary, that :-(a) the claimant’s description of what she wrote to the respondent on 17 November 2021, as contended for in the Grounds of Complaint and/or at paragraph 15 of the application, is a misrepresentation of what the claimant actually stated in her email dated 17 November 2021 and(b) the claimant’s email on 17 November 2021 (page 474 of the bundle and paragraph 84 above) was a clear and unequivocal resignation (which once submitted could not be withdrawn without the consent of the respondent) and(c) this was not a heat of the moment resignation as it was a clear and unequivocal resignation which was submitted after the claimant had been threatening to resign over a period of weeks, had been given time to reflect on her position and had been told that she should confirm any resignation formally by email. The respondent relied in particular on the authorities of Riordan v War Office [ 1959] 1 WLR 1049 , Harris & Russell Limited v Slingsby [1973] ICR 454,NIRC, Sovereign House Security Services Limited v Savage[1989] IRLR 115 CA and Wallace v Ladbrokes Betting and Gaming Limited (UKEAT/0168/15) in support of its case. The conclusion of the Tribunal on the issue of express dismissal / resignation[107]Having given the matter careful consideration, the Tribunal is not satisfied, on the basis of the available information that the claimant has a pretty good chance that the Tribunal will decide at the full hearing that the claimant was expressly dismissed by the respondent for the purposes of section 95 (1) (a) of the Act and/or that there was no resignation and /or that any resignation was, in any event, submitted in the heat of the moment which the claimant should have been permitted to have withdrawn.[108]When reaching such conclusions, the Tribunal has taken into account in particular, that not only has the claimant failed to identify any “words” of actual dismissal but also that the contents of the claimant’s email to the respondent on 17 November 2021(timed at 12.36pm) (paragraph 84 above and page 474 of the RDB) states (twice) that she wants to resign/ quit her job for the stated reasons. Further, that email does not state, as contended for by the claimant at paragraph 15 of the application, that she would resign if the respondent “will keep pushing me for a disciplinary investigation”.[109]The Tribunal has further taken into account that 4 minutes later, the claimant sent an email to a respondent global distribution list (which was also received by Ms Frazer to whom the earlier email had been addressed) in which she announced her decision and said “Bye” to her colleagues (paragraph 85 above and page 472 of the RDB). Moreover, Ms Frazer, emailed the claimant in response to her email (paragraph 88 and page 473 of the RDB) stating that the respondent understood the claimant’s decision and confirming the acceptance of her resignation.[110]Further the Tribunal is not satisfied, on the available information and having had regard to the authorities referred to at paragraph 106 above, that the claimant has a pretty good chance of establishing at the full hearing that any resignation on her part was “ a heat of the moment” resignation which the claimant should have been permitted to have withdrawn.[111]When reaching such conclusion the Tribunal has taken into account from the available information, the claimant’s stated mental health condition at the time of events in question and also that the claimant sought (from 20.05pm ) on the evening of 17 November 2021 to refute that she had resigned/ contended that she was unwell and needed to talk about the matter ( paragraphs 89 to 93 above).[112]The Tribunal has however balanced against this that the claimant had been threatening to resign her employment with the respondent from 1 October 2021 (paragraphs 31 and 32 above onwards) at which time the claimant stated that she had not been in good health or happy since she had joined the respondent and that such comments were ongoing during the subsequent period. The Tribunal has further taken into account from the available information that in the following weeks the respondent encouraged/arranged for the claimant to obtain support from OH, encouraged the claimant to take time to reflect on any decision to resign and told her that if she wanted to resign, she should do it formally by email (in particular paragraphs 46, 49, 55, 66 and 67 above). Moreover, on 15 November 2021 the claimant was permitted to take time to consider her position with the respondent (paragraph 79 above).[113]In all the circumstances, the Tribunal is not satisfied that the claimant has a pretty good chance of establishing at the full hearing that the claimant was dismissed by the respondent for the purposes of section 95 (1) (a) of the Act. The conclusion of the Tribunal on the issue of constructive unfair dismissal[114]The claimant’s alternative case is that she was constructively dismissed for the purposes of section 95 (1) (c) of the Act. The relevant issues for the purposes of this interim relief hearing, including the alleged relevant repudiatory breaches occurring prior to any enforced resignation on 17 November 2021, are identified at paragraph 21 above.[115]The claimant’s primary case on constructive dismissal appears to be that if she did resign she was forced to do so because of the requirement to participate in a disciplinary investigation notwithstanding that :-(a) any such matters had arisen because of her mental health condition and(b) that she was not fit to participate in any disciplinary investigation because of her mental health condition which would “even” proceed in the absence of an OH assessment. The claimant further appears to contend that the reason why the respondent required her to participate in a disciplinary investigation was that she had made (multiple) protected public interest disclosures. The claimant has not advanced for the purposes of this interim relief application any positive case in respect of the harassment element of the alleged repudiatory breaches of contract.[116]The respondent denies any repudiatory conduct on its part including in respect of the alleged breaches in respect of -(1) the initiation of the disciplinary investigation and /or(2) the alleged harassment on 11 November 2021. The respondent further denies that either of the alleged matters, in any event, occurred because the claimant had made any protected public interest disclosures for the purposes of section 103 A of the Act.[117]The respondent relies in particular in respect of this element of the claim on the authorities of Bank of Credit and Commerce International S.A v Ali (No 2) [2000]ICR 1354 Ch, Morrow v Safeway Stores [2000] IRLR 9,EAT Salisbury NHS Trust v Wyeth (UKEAT/0016/15) and Abernethy v Mott Hay and Anderson [ 1974] ICR 323, CA.[118]In this case the claimant relies on the respondent’s alleged breaches of the implied term of trust and confidence in respect of the matters identified above. When considering this aspect of the claim, the Tribunal has had regard in particular to the review of the legal authorities relating to the implied term of trust and confidence contained in the Judgment of Morrow v Safeway Stores referred to above.[119]The Tribunal has reminded itself for such purposes, that the there is an implied term in a contract of employment that an employer will not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between an employer and employee. The Tribunal has further reminded itself that an established breach of the implied term of trust and confidence constitutes a fundamental or repudiatory breach going to the root of the contract which entitles an employee to resign and claim constructive dismissal for the purposes of section 95 (1) (c) of the Act.[120]The Tribunal has considered first the claimant’s allegations relating to the pursuit of the disciplinary investigations. The claimant has established on the available information that the respondent had notified/ confirmed that it was proceeding with a disciplinary investigation into the claimant’s messaging (paragraphs 78 and 81 above).[121]The claimant has not however established on the available information that the respondent informed the claimant that it would do so “even in the absence of OH assessment”. The Tribunal is satisfied from the available evidence, that the claimant was encouraged throughout the relevant period to engage with OH. Further in her email to the claimant dated 17 November 2021 (paragraph 81 above) Ms Frazer stated that she was recommending to OH that they arrange an appointment for the claimant and that she wanted to ensure that the claimant was fully supported and to obtain advice regarding any required adjustments and the claimant’s fitness to participate in any investigation. Ms Frazer however warned the claimant that if the claimant decided not to arrange/ attend an appointment with OH it was likely that the respondent would, in such circumstances, progress the investigation without further OH advice and that it was therefore important for the claimant to engage with such process.[122]Further, having given the matter careful consideration, the Tribunal is not satisfied that the claimant has a pretty good chance of establishing at the full hearing that the respondent acted in breach of the implied term of trust and confidence in respect of the pursuit of/ requirement that the claimant be subject to a disciplinary investigation.[123]When reaching this conclusion, the Tribunal has taken into account in particular, that it appears from the available information that from the middle of October 2021 onwards, the respondent was receiving notification of an increasing volume of concerns from former colleagues on the IA team and, subsequently associated managers, regarding the nature and manner of the claimant’s messaging on the slack messaging system (paragraphs 44, 47, 51, 54, 57, 58, 69 and 72). Further by 6 November 2021 (paragraph 72) a manager was raising concerns regarding the effect of such messages on the welfare of recipients.[124]The Tribunal has also taken into account what appears from the available information to be the increasingly inappropriate nature of the messages and the consequential concern caused to the recipients. These include the messages referred to at paragraphs 51, 58, 69 and 72 above. Further, the claimant herself acknowledged the inappropriate nature/ manner of some of the messages / expressed a wish to apologise (paragraphs 49, 53 and 77).[125]The Tribunal has further taken into account that it appears from the available information that the respondent made multiple informal attempts to :- (a) explain to the claimant the inappropriate nature of her conduct and the importance of refraining from any further messaging which was not accepted/ acted upon accordingly by the claimant ( paragraphs 48, 52, 59, 65 and 78 ) and to encourage / support the claimant to raise any concerns via the respondent’s grievance procedure ( paragraphs 41,45, 59 and 75 )[126]Further, in the light of the above findings, The Tribunal has gone onto consider whether, even if, the claimant had a pretty good chance of establishing at the full hearing that she made any protected interest disclosures during the alleged relevant period of October – November 2021 (paragraph 13 of the application) in respect of any of the matters referred to above she, in any event, also has a pretty good chance of establishing that they were the reason/ principal reason for the respondent’s pursuit of the disciplinary investigation.[127]The Tribunal has had regard for such purposes to the authorities of Bolton School v Evans [2006] IRLR 500 EAT& 2007 ICR 641,CA Panayiotou v Chief Constable of Hampshire Police [ 2004] IRLR 500, EAT, and Riley v Belmont Green Finance Ltd t/a Vida Homeloans UKEAT/0133/19. The Tribunal has therefore reminded itself that there is a clear distinction to be drawn between the dismissal for the making of protected public interest disclosures and dismissal for the manner in which they are made, which is clearly of relevance in this case.[128]Having given the matter careful consideration the Tribunal is not satisfied that the claimant has, in any event, a pretty good chance of establishing at the full hearing that the reason/ principal reason for the respondent’s pursuit of the disciplinary investigation was that the claimant made any protected public interest disclosures.[129]When reaching this conclusion, the Tribunal has taken into account the matters previously identified above (including the distinction to be drawn between the making of and the manner of making any protected public interest disclosures). The Tribunal is satisfied on the available information that :-(a) the claimant was encouraged to raise any concerns via the respondent’s grievance procedure and(b) that the reason why the respondent initiated and pursued a disciplinary investigation against the claimant was because of her continued messaging on the slack messaging system of inappropriate comments regarding her former colleagues on the IA team (which caused them concern and some of which she herself acknowledged were inappropriate and sought to apologise for). Further, the claimant did so notwithstanding the repeated instructions from the respondent to refrain from such messages and to raise any concerns via the respondent’s grievance procedure.[130]In all the circumstances the Tribunal is not satisfied that the claimant has a pretty good chance of establishing at the full hearing that she was constructively dismissed namely, that the respondent committed any breach of the implied term of trust and confidence in respect of the pursuit of the disciplinary investigation / that any such pursuit was, in any event, because the claimant made protected public interest disclosures.[131]The Tribunal has therefore gone to consider the second of the alleged detriments for the purposes of the claimant’s constructive dismissal claim namely, the alleged harassment in relation to the onsite meeting on 11 November 2021. The claimant has not pursued any positive case in respect of this allegation in her application. The respondent denies any repudiatory breach / that it was, in any event, in anyway related to the making of any alleged protected public interest disclosures.[132]Having given the matter careful consideration, the Tribunal is not satisfied that the claimant has a pretty good chance of establishing at the full hearing that the respondent committed a breach of the implied term of trust and confidence in respect of such matter and/or that that the claimant has, in any event, a pretty good chance of establishing at the full hearing that any such conduct was perpetrated because the claimant had made protected public interest disclosures.[133]When reaching such a conclusion the Tribunal has taken into account the respondent’s acceptance of the matters referred to at paragraph 98 above. On the basis of the available evidence it appears however that :-(a) the discussions referred to at paragraph 98 above were made in the context of an onsite presentation to the IA team concerning scientific research relating to human development(b) the claimant, who had not been a member of the IA team since June 2021, did not attend and had no involvement in the on site talk(c) the claimant has not adduced any prima evidence in her application in support of this allegation/ to show that any such discussions were related to any protected public interest disclosures. Did the claimant make protected public interest disclosures?[134]In the light of the above findings, it is not necessary for the Tribunal to determine this issue for the purposes of the interim relief application.
Outcome
[135]The claimant’s application for interim relief pursuant to 103 A and 128 (1) of the Act is therefore dismissed.
Outcome
Outcome
[1]These reasons relate to the part of the judgment sent to the parties on 5 October 2023 in which I decided that the complaints in case number 2200303/2023 which I had not struck out had been presented within time, by virtue of the “just and equitable” extension available under section 123(1)(b) of the Equality Act 2010. The relevant provision is as follows: (1) Proceedings on a complaint within section 120 may not be brought after the end of – (a) The period of 3 months starting with the date of the act to which the complaint relates, or (b) Such other period as the Tribunal thinks just and equitable.[2]In Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23 the Court of Appeal (through Underhill LJ) observed that: “The best approach for a tribunal in considering the exercise of the discretion under section 123(i)(b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular... the length of and the reasons for the delay…”[3]It is relevant for the purposes of these reasons to explain that, in the part of the present hearing held in private, I decided that the complaint in case number 2200303/2023 concerning events in November 2022 should be struck out and that an application to amend the claim to make a complaint about events in July 2023 should be refused. In both cases, the essential reason for this decision was that evidence about these matters would be inadmissible by virtue of the “without prejudice” rule.[4]Claim number 2200303/2023 was presented on 16 January 2023. The Claimant contacted ACAS in connection with the claim on 9 December 2023 and received an early conciliation certificate dated 16 January 2023.[5]The grounds of claim contained 6 allegations of discrimination because of something arising in consequence of disability and/or victimisation. Of these, the most recent in time was the one I have struck out, relating to events in November 2022. Allegations 1-4 quote dates and particular events, of which number 4 is the most recent, being an allegation that the Respondent asked a recruiter not to proceed with the Claimant’s application on 8 June 2022.[6]Allegation 5, a complaint that the Respondent ignored or rejected applications from January 2022 onwards is potentially open-ended, but I have heard no argument based on dates after that, nor are any pleaded. Instead, the Claimant has sought to rely on a continuing discriminatory state of affairs, as shown by correspondence in September 2022 about the subject matter of these complaints, and has argued that the 3 month limitation period should be counted from then, plus the extension arising from the early conciliation period. There is a difficulty about this argument, in that it is not pleaded that there was any act of discrimination or victimisation in September 2022, but it is not necessary to take this any further given the decision I have reached in any event on the just and equitable aspect.[7]The Claimant gave evidence on this by reference to a witness statement and in answer to questions from Ms Belgrove and from me. Ms Belgrove took the Claimant to an email chain from August and September 2022. The Claimant agreed that on 15 August 2022 it had been said on the Respondent’s behalf that they would not progress any job applications from her. The Claimant said that she had understood what was being said and that she strongly felt that it was not right, but that for her it was not a final position, but rather part of a negotiation.[8]I do not find that, in itself, particularly compelling. Even if the Claimant believed that the Respondent might change its stance, this nevertheless was its stated position at the time.[9]On 21 September 2022 the Claimant received an electronic file of documents from the Respondent in answer to a Subject Access Request. The Claimant has relied on documents in this file in support of the complaints in claim number 2200303/2023. Her evidence was that, although she received the file on 21 September 2022, she did not open it until 28 November 2022. Her explanation for this was that she was concentrating on putting together documents in order to obtain legal advice on case number 2207444/2021; that this advice related to and included representation at a preliminary hearing on 25 October 2022 and a judicial mediation on 23 November 2023; and that she experienced some communication or personal difficulties between herself and the solicitor she had instructed.[10]The Claimant further stated that all of this occurred in the context of her conditions of autism and schizo-affective disorder, with a differential diagnosis of bipolar affective disorder. She described the former as meaning that she works in a hyper-focused and obsessive way on one thing at a time and finds multi-tasking very difficult. The Claimant said that the latter condition caused her to experience depression and extreme unhappiness at the relevant time, meaning that her capacity to process further documents was diminished.[11]I accept the Claimant’s evidence about the effects of her condition. I have no reason to disbelieve what she has said, particularly given the more general medical evidence in the case, which tends to support her account.[12]Having said this, I nonetheless find it surprising that the Claimant did not look at the file of documents at all for 2 months after receiving them. I find that this is a point which goes into the balance against the Claimant when considering whether it would be just and equitable to extend time.[13]The Claimant’s further evidence, which I also accept, is that she began looking at the file of documents on 28 November 2022 and sent them to her solicitor on 30 November. She received some general and final advice from the solicitor on 6 December 2022 and started the ACAS conciliation process on 9 December. So far as the period from 28 November 2022 onwards is concerned, I find that the Claimant acted reasonably promptly once she had read the file of documents. Her case is that, on reading the documents, she found material which supported her belief that the refusal to consider applications from her had been discriminatory and/or a case of victimisation. I will come to that material later in these reasons.[14]In considering the length of, and the reasons for the delay in bringing the proceedings, I have identified factors which go into the balance either for or against an extension of time. I find that the general prejudice to the parties is also fairly finely balanced. If I do not extend time, the Claimant suffers the obvious prejudice of not being able to pursue the claim. Conversely, if I do extend time, the Respondent has to meet a further claim based on factual allegations beyond those in the first claim. The full hearing would be longer and more witnesses would be required.[15]This brings me to the question of the effect of the delay on the cogency of the evidence. The Claimant has provided a bundle of the documents produced in response to her Subject Access Request. I will not set out the contents of these in detail, not least because I am aware that there may be future issues about privilege.[16]However, page 24 of the Claimant’s bundle contains an email exchange of 3 February 2022 (within the Respondent’s organisation, as were the others to be referred to in this paragraph) in which reference is made to her being a candidate for a position in the organisation and which refers to her being hospitalised (as she was, by reason of her mental health condition) and to her “lawsuit” (i.e. the first claim). On page 27 there is reference to not responding (to an application made by the Claimant) unless instructed otherwise. On page 100 there is reference to an application made by the Claimant and the observation that it would be inappropriate to discuss this on the Respondent’s internal messaging system.[17]I do not make any finding about what, if any, significance all of this may have, other than to say that I can understand, from the Claimant’s point of view, why she says that when she read these exchanges, she considered that she had material which might suggest a connection between her disability and/or the first claim and the Respondent’s refusal to consider any applications from her. (I should add that the Claimant would put it more strongly than this: these are my words, not hers). I make no comment on the potential merits of the complaints in issue, other than to observe that there has been no submission to the effect that they have no reasonable prospect of success when taken at face value, and nor do I have reason at present to find that to be the case.[18]Furthermore, Ms Belgrove did not submit that the Respondent would be subjected to any evidential prejudice if time were to be extended, in other words that the Respondent would have difficulty because of the delay (whatever may be the precise period in question) providing evidence in answer to the claim. I would add that it would be surprising if that were to be the case. I would expect that, knowing that the first claim was under way, and knowing the basis of it, in adopting the course of refusing all applications from the Claimant, and telling her that they were doing that, the Respondent would ensure that they preserved evidence, in whatever form, of what they were doing and why they were doing it.[19]I find this to be a significant point in favour of extending time. The Claimant has a claim which is not in the category of those with no reasonable prospect of success, and which can (I find) be fairly heard on the merits.[20]That point is not definitive in the Claimant’s favour. I have to look at all the relevant circumstances. Having done so as discussed above, I find that it is just and equitable that claim number 2200303/23 (minus the complaint I have struck out) should be heard. Employment Judge Glennie[1]These reasons relate to the following decisions which I communicated to the parties on 29 September 2023 in private:1.1 Contained in the written judgment dated 5 October 2023, that the complaints in case number 2200303/2023 about a clause included by the Respondent in a draft COT3 agreement on 23 November 2022 were struck out on the grounds that they have no reasonable prospect of success.1.2 Contained in written Orders dated 5 October 2023, refusing the Claimant’s application for a preliminary hearing to determine a preliminary issue as to whether she had mental capacity to resign.1.3 Also contained in those Orders, vacating and re-listing the full hearing.1.4 Inadvertently omitted from either the judgment or the Orders (an omission which I have now remedied by issuing a corrected version of the Orders), refusing the Claimant permission to amend claim number 2200303/2023 so as to join the Alphabet Group and/or Alphabet Inc and to plead against them a claim that a similar clause to that referred to in 1.1 above had been proposed in the course of negotiations in July 2023.
Background
[2]The Claimant has presented 3 claims to the Tribunal. Claim number 2207444/2021 was presented on 8 December 2021 and made complaints of disability discrimination under the Equality Act 2010 and unlawful deduction from wages under Part II of the Employment Rights Act 1996. Claim number 2200303/2022 was presented on 14 January 2022 and made complaints of disability discrimination which were described as amended grounds for 2207444/21. These two claims have subsequently been referred to together as “the first claim”. Claim number 2200303/2023 was presented on 16 January 2023 and made further complaints of disability discrimination and victimisation. This has been referred to as “the second claim”.[3]There has been a substantial procedural history to the claims. It is not necessary for the purposes of these reasons to describe this in detail. Most recently, on 26 June 2023 Employment Judge Joyce listed a preliminary hearing to determine whether the complaints in the second claim were presented within time, and if not, whether it was nonetheless just and equitable for them to be heard; the Respondent’s application to strike out part of the second claim, as in clause1.1 of the judgment above; and whether the first and second claims should be heard together. That substantive preliminary hearing commenced before me on 2 August 2023. The Claimant became unwell during the course of that day, and I adjourned the hearing to 27-29 September 2023. I subsequently added to the issues to be determined a number of further matters, including the Claimant’s applications referred to in clauses1.2 and 1.4 of the judgment above. It was not possible to conclude all outstanding matters in the course of the 3 days, and I reserved judgment on the Claimant’s specific disclosure application, and adjourned the remaining issues to be determined on 30 November 2023. The privilege issue[4]The Respondent applied to strike out the whole of the second claim on the ground that it had no reasonable prospect of success. This in turn involved the following elements:4.1 That the only allegation made within the applicable time limit is that contained in paragraph 37 of the Grounds of Claim;4.2 That paragraph 37 should be struck out because the allegation contained in it relies on reference to legally privileged material.4.3 Once paragraph 37 has been removed, the remaining allegations should be struck out as they are out of time.[5]I gave a separate judgment on the time limits issue in the public part of the hearing, and I have produced separate written reasons dealing with this. I will set out here the reasons for my decision to strike out paragraph 37. That paragraph reads as follows: “On 23rd November 2022, the Respondent in their draft COT3 agreement in preparation for Judicial Mediation added a clause which prohibited the Claimant from making any future applications to any part of the Respondent’s organisation globally, as well as prohibiting any future legal claims against the Respondent in respect of those applications. The Claimant submits that this was unambiguous impropriety, and which confirmed that Google and/or DeepMind had discriminated against and victimised the Claimant in the past, and expected to do so in the future in the event that the Claimant was either contacted by the Respondent’s recruiters, or applied to the Respondent’s advertised roles.”[6]The COT3 agreement was expressed to be without prejudice, and the whole premise on which a Judicial Mediation is conducted is that it is without prejudice and that what is said and done in connection with it cannot be relied upon if the proceedings continue after an unsuccessful mediation. It was common ground between the parties that without prejudice communications are privileged and cannot usually be relied upon in evidence. This is implicitly recognised by the Claimant in paragraph 37, as she relies on one of the exceptions to the without prejudice rule, which is that of unambiguous impropriety.[7]In Unilever PLC v Procter and Gamble [2000] WLR 2436 at page 2444 Robert Walker LJ in the Court of Appeal expressed the unambiguous impropriety exception in the following terms: “…….one party may be allowed to give evidence of what the other said or wrote in without prejudice negotiations if the exclusion of the evidence would act as a cloak for perjury, blackmail or other “unambiguous impropriety”….. and added that the Court of Appeal had “…warned that the exception should be applied only in the clearest cases of abuse of a privileged occasion.”[8]The Claimant placed some reliance on the decision of the Employment Appeal Tribunal in BNP Paribas v Mezzotero [2004] IRLR 508. Here the EAT upheld the Tribunal’s decision that evidence about what was said in a purportedly without prejudice conversation following the Claimant’s raising of a grievance would be admissible by virtue of the unambiguous impropriety exception. The EAT’s primary finding was that the Tribunal chairman was entitled to conclude that the without prejudice rule did not apply to the meeting concerned because there was no extant dispute between the parties about termination of the employment relationship (which was what the employer was proposing). In the alternative, the EAT found that the employer’s conduct fell within the ambit of unambiguous impropriety.[9]In summary, what occurred in the meeting in Mezzotero was that, having raised a grievance about how she had been treated in connection with maternity leave, the Claimant was told that it was not viable for her to return to work, that there was no alternative available to her, and that it would be best if she were to accept a redundancy package. I find that the situation in the present case is not at all like that. In Mezzotero the employer effectively announced a course of action that was blatantly discriminatory, and the Tribunal found (and the EAT confirmed) that they could not use the without prejudice label to protect themselves from the consequences of that.[10]I find that in the present case, the Respondent has done no more than put forward a basis on which they would agree to settle the current litigation. In doing so, they sought an agreement that the Claimant would not apply for positions with their organisation in the future. I do not see that, as the Claimant characterises it, as an announcement of an intention to discriminate against her or to victimise her. I find that the proposal reflects a view about what the Respondent considered to be in its commercial interests, in other words trying to avoid future engagement with the Claimant and, I imagine, trying to avoid the risk of her making further claims.[11]I find that a further, important, point is that this was no more than a proposal, potentially as part of an offer to settle the claim. The Claimant was free to decline the offer or proposal, as she did, and to continue with the litigation. Having declined the proposal, the Claimant remains uninhibited in her ability to apply for jobs with the Respondent and other members of its organisation. The proposal in the COT3 does not, in my judgement, amount to a statement of intention to discriminate against or victimise the Claimant. It represents an attempt by the Respondent to obtain something of commercial value to them (substantially, some protection against future claims or complaints), as part of a negotiation with the Claimant in which she would be attempting to obtain something of commercial value to her (a sum of money in settlement of her claims). That is very different from the Mezzotero situation where the Claimant was presented with an effective fait accompli and invited to accept terms for the termination of her employment.[12]I have therefore concluded that the unambiguous impropriety exception does not apply to matters pleaded in paragraph 37. The Claimant cannot therefore rely on those matters in support of a complaint to the Tribunal, meaning that this part of the claim has no reasonable prospect of success (in fact, no prospect of success at all).[13]Rule 37(1) of the Tribunal’s Rules of Procedure provides that a Tribunal may strike out a claim or part of a claim on grounds which include that it has no reasonable prospect of success. A finding that a part of a claim has no reasonable prospect of success does not automatically lead to its being struck out: the Tribunal must decide whether to do so as a matter of discretion. Although discrimination complaints are fact-sensitive and should not lightly be struck out, I find that there is no reason to allow this part of the claim to continue, and that there would be no benefit to anyone were this to occur. I have therefore struck out this part of the claim. Preliminary hearing on capacity to resign[14]The Claimant seeks a preliminary hearing on the preliminary issue as to whether she had the capacity (meaning the mental capacity) to resign from her employment. The Respondent resists the proposal.[15]It is not entirely clear to me where the Claimant wishes to take this point. If she intends to argue (as it appears from her skeleton argument) that her resignation was invalid or of no effect because of lack of capacity (capacity being a legal concept more frequently encountered in relation to capacity to conduct litigation), and that this has certain legal consequences, this is not an aspect of the claim as currently pleaded. There would be need of an application to amend the claim and for careful consideration of how the point is put.[16]Alternatively, if this is no more than a different way of putting the complaints (which have been pleaded) that the Respondent should not have accepted the Claimant’s resignation, or should have allowed her to retract it, and that these amounted to acts of discrimination or a failure to make reasonable adjustments, then it is covered by the existing pleading. There would, however, be no advantage in that case to be gained by a preliminary hearing on “capacity”, since the issues would concern questions of disability, the Respondent’s knowledge of the Claimant’s disability, the reasons for the Respondent’s actions, etc. The concept of capacity may be related to that of disability, but to the extent that it is, deciding this in isolation would not be an effective way to proceed, as it would not be determinative of any of the complaints before the Tribunal.[17]I have not therefore ordered a preliminary hearing on the question of capacity. Vacating the full hearing[18]The full hearing was listed for 10 days commencing on 30 October 2023, just over 4 weeks from the date of the current hearing.[19]The Respondent argues that it is not practicable for the full hearing to proceed. The Claimant contends that it is, and that it would be unfair to her if it were not to go ahead as listed.[20]In deciding whether or not to postpone the hearing, I am concerned more with the practicalities as they are than with establishing precisely why we have arrived at the point we have, or with the extent to which either party might be blamed for the situation.[21]I have in mind the overriding objective of the Tribunal’s Rules, which is to enable the Tribunal to deal with cases fairly and justly. Rule 2(c) states that this involves: “avoiding delay, so far as compatible with proper consideration of the issues.” Perhaps it is an obvious point, but while delay should be avoided, avoiding delay is not the Tribunal’s sole objective: proper consideration of the issues is vital.[22]I have concluded that the full hearing should be postponed and re-listed, for the following reasons:22.1 There is a question as to whether the first and second claims should be heard together. I am satisfied that, if practicable, they should be heard together. They involve the same parties and the same disabilities. The facts of the second claim follow on from the facts of the first. If they were to be heard separately, the two hearings would inevitably take longer in terms of days before the Tribunal than were there to be a single hearing of both claims. The Tribunals hearing the claims would have to take care not to reach inconsistent findings, and the Tribunal which conducted the second hearing might find itself constrained by the findings made by the first Tribunal.22.2 The second claim cannot possibly be heard during the 10 days starting on 30 October. There have been no case management orders in the second claim. There would have to be disclosure of documents, agreement as to the documents to be placed in the bundle, and the production of witness statements. All of this cannot realistically be done within 2 weeks (assuming that the final step, exchange of witness statements, should take place not less than 2 weeks before the commencement of the hearing).22.3 If, contrary to subparagraph 1 above, the second claim were to proceed separately from the first, the hearing of the second claim would have to take place at some point in 2024, because of the need for case management and the availability of hearing dates.22.4 Even if the trial of the first claim alone commencing on 30 October were retained, it would be extremely difficult for it to be made ready for an effective trial. The agreement of bundles and the exchange of witness statements would not normally be compressed into a period of 4 weeks before the hearing in a substantial and complex case (and as explained above, in reality the time remaining is more like 2 weeks).22.5 There was a dispute as to whether the 10 day time estimate for the hearing would be sufficient even for the first claim alone. The Respondent submits that it is not. The Claimant argues that it is, but her suggested trial timetable in support of this leaves no time for the Tribunal to deliberate and formulate its judgment. If there are 10 days of evidence and submissions, a Tribunal will usually need a further 2-3 days for deliberation and judgment. Those days would have to be found when all 3 members of the Tribunal are available, which would again be likely to push the conclusion of the hearing some way into 2024.22.6 It might be said that this preliminary hearing alone has taken 3 days. The reality is that there have been 4 days so far, including the first day when the Claimant was unwell, and there still remain interlocutory issues to be dealt with. Taking this as a guide, and having in mind the extent of the issues, I do not now consider that 10 or even 12 days would be sufficient for the first claim alone to be heard.22.7 The prospects for re-listing the hearing are not as gloomy as might be expected. A hearing of up to 20 days can be accommodated from the first week of September 2024 onwards. Given that splitting the two claims would leave the matter continuing some way into 2024, the delay that would follow from listing them together would not be very great. Application to amend claim 2200303/2023 to join Alphabet Group and/or Alphabet Inc[23]The proposed amendment raises a similar question to that considered above in relation to the privilege issue and the Respondent’s application to strike out the complaint in paragraph 37 of the second claim. The Claimant applies to amend the claim in order to make a similar complaint against Alphabet Group and Alphabet Inc, which are members of the same organisation as the Respondent, on the grounds that a draft settlement agreement sent to the Claimant in July 2023 contained a similar clause to that complained of in paragraph 37, although this time extending to these two additional entities.[24]My reasons for striking out the complaint in paragraph 37 are applicable to this application to amend the claim. This would be a pointless amendment, as the new complaint against the new parties would have no reasonable prospect of success for the reasons which have led me to strike out the complaint in paragraph 37. I therefore refused the amendment application.[26]I have produced separate written reasons for the judgment which I gave in public on the time limits issue. Employment Judge Glennie
Background
[1]These reasons relate to the following decisions:1.1 My judgment dated 13 November 2023 whereby I dismissed upon withdrawal the complaints of unfair dismissal under section 98 of the Employment Rights Act; constructive unfair dismissal; and automatic unfair dismissal under section 103A of the Employment Rights Act 1996.1.2 My orders dated 13 November 2023 whereby I:1.2.1 Refused the Claimant’s application to amend claim number 2207444/2021 to plead a complaint of automatic unfair dismissal under section 104 of the Employment Rights Act 1996.1.2.2 Determined that the hearing would continue part-heard on 30 November 2023, on which occasion I would hear the Claimant’s application for permission to call her treating consultant Dr Shanahan as an expert medical witness and the Respondent’s application for permission to call an expert medical witness.1.2.3 Refused the Claimant’s application for me to recuse myself from the remainder of the hearing1.3 My decision on the Claimant’s application for specific disclosure.[2]This preliminary hearing, which took place by video, was a continuation of that which took place on 27-29 September 2023, which itself followed on from a preliminary hearing on 2 August 2023. At the commencement of the present hearing I identified the following as remaining for decision:2.1 Whether the claims that the Claimant had withdrawn, but which had not been dismissed, should be dismissed.2.2 The Claimant’s application to amend the claim to add a complaint of automatic unfair dismissal under section 104 of the Employment Rights Act.2.3 The Claimant’s application to call her treating psychiatrist Dr Shanahan as an expert medical witness.2.4 The Respondent’s application to call an expert medical witness.2.5 The Claimant’s application for specific disclosure.2.6 Outstanding case management issues.[3]I would usually produce as separate documents reasons relating to a judgment and reasons relating to orders, as the former would be placed on the Tribunal’s register and website, while the latter would not. On this occasion I have produced a single document, which will not be placed on the register or the website, as the judgment is for the dismissal of claims on withdrawal, and the practice is that judgments of this nature are not placed on the register or the website.[4]By way of background to the applications regarding medical evidence, at a preliminary hearing on 9 February 2023 Employment Judge J Burns had previously given directions for an independent medical expert to be jointly instructed by the parties. This was done, and Dr Colwill produced a report and answers to questions. For reasons which need not be explained at this stage, both parties expressed a degree of dissatisfaction with Dr Colwill’s evidence. The Claimant had applied to call her treating consultant, Dr Shanahan, on 22 September 2023. The Respondent’s application for permission to call an expert on their own behalf was made shortly before this hearing, on 7 November 2023. The Claimant objected to the Respondent’s application being heard in the course of the present hearing, on the grounds of lack of notice. Account of the hearing (1)[5]In the first instance I decided to hear submissions about the issue as to dismissal of the withdrawn claims and the Claimant’s amendment application. I did so as I wished to ensure that at least some substantive issues were addressed sooner rather than later.[6]I duly heard submissions on those two aspects and, without announcing any decision on them, returned to the Respondent’s application about medical evidence shortly after 4pm on 9 November. Ms Belgrove stated that she did not wish to place the Claimant in a difficult position, i.e. by insisting that she should respond to an application which she had only recently received, and I said I would hear only the Claimant’s application to call Dr Shanahan of the two applications about medical evidence in the first instance. In an attempt to encourage the parties to reflect on the position regarding the medical evidence I observed that, while each was advancing their own application and opposing the other party’s, it was unlikely (not impossible, but unlikely) that I would conclude that one party should be permitted to call alternative medical expert evidence, but not the other. The hearing then adjourned until 10am on 10 November.[7]At the commencement of the hearing on 10 November, on my own initiative, I revisited the question of whether to hear the applications regarding medical evidence separately or together. The Claimant submitted that I should hear her application forthwith, and the Respondent’s application on a later date. She said that doing so would avoid bias (although shortly afterwards she took back any suggestion of bias) and expressed concern that, if I were to hear the two applications together, I might become confused.[8]Ms Belgrove submitted that the two applications were interrelated and that there was a risk that an unfair result would occur if they were heard separately. Ms Belgrove argued that factors could emerge at a later hearing which would have influenced the earlier decision, had they been known; and with some reluctance she submitted that the two applications should be heard together. The Claimant replied that these were independent applications which should be heard separately and judged on their own merits, and that it would be an error of law to decide that, if one party can have an expert, therefore so should the other.[9]I gave my decision (which was that the two applications should be heard together) and the reasons for it orally, commencing at about 10.40am. Reasons for decision to hear the two applications regarding medical evidence together[10]On day 1 of this hearing (yesterday, 9 November 2023) I said that I would hear the Claimant’s application for permission to call Dr Shanahan and deal with the Respondent’s application at a later date as it had been made as recently as 7 November 2023. Overnight I began to wonder whether that was right, and whether in fact the two applications ought to be heard together. On the morning of 10 November the Claimant produced a further skeleton argument and a letter dated 8 November 2023 from Dr Shanahan, in which the latter provided his opinions about the Respondent’s application, which were in support of the argument that the Respondent should not be permitted to call a further expert.[11]Faced with the two applications the possible outcomes are that: neither application succeeds; the Claimant’s application succeeds and the Respondent’s does not; the Respondent’s application succeeds and the Claimant’s does not; or both applications succeed. When considering the applications, I will have to have in mind the requirements of justice to both parties, in the context of both applications.[12]The Claimant is concerned that hearing the applications together may cause confusion. She says, correctly in my judgement, that the respective applications must be considered on their merits and not on a tit-for-tat approach.[13]I consider that, in a sense, confusion is more likely to occur if the applications are heard separately. I agree with Ms Belgrove that, if they are heard and determined sequentially on separate dates, there is the possibility that something will emerge in the second hearing which would have made a difference to the first. There is a risk that, whichever way the first decision goes, that may have an effect on the Tribunal’s exercise of discretion in the second which it would not have done had they been heard together and all options had remained open to the Tribunal.[14]Although I am reluctant to put matters over which might otherwise have been dealt with today, I find that the interests of justice are better served if I do that. Account of the hearing (2)[15]When I had given my reasons as set out above, the Claimant stated that the risk that something might emerge was the reason why the applications should be heard separately. She said that, if there had not been an issue with insufficient time at the previous hearing, her application would have been heard then, before the Respondent had made theirs. The Claimant continued that Dr Shanahan was the most important witness in the case, as he was both an expert and a witness (the latter of which I took to mean a witness of fact).[16]I said that these matters had not persuaded me to change my mind, and that the two applications would be heard and determined on the same occasion. The Claimant said that she wanted reasons for my decision. I said that I had given them, and that she could ask for written reasons.[17]I then proceeded to give my decision on the issue as to the withdrawn claims and the amendment application, both of which I had heard the previous day. At this point the Claimant dropped out of the hearing. I said that I would wait for 5 minutes in order to see whether she reconnected.[18]At about 11.35am Ms Davidsen, who had attended the hearing in order to provide support to the Claimant, informed the hearing that the Claimant had told her that she had disconnected in order to protect her mental health, and that she was asking for reasons.[19]Shortly after this, the Claimant rejoined the hearing and asked me to recuse myself. Ultimately I was uncertain about the extent to which this was a considered application, or something said in the heat of the moment, partly because of the way in which it was put, and partly as after I had determined this application, the hearing proceeded in a straightforward manner and I heard submissions on the specific disclosure application and on how the remaining issue about medical experts should be managed. I made a decision not to recuse myself and I said that I would (as asked by the Claimant) give written reasons for each of the decisions I had made. Reasons for refusal of recusal application[20]The Claimant stated that she wanted a change of judge and that I had listed the two applications about medical experts together because I wanted to decide to give the Respondents their expert. The Claimant added that she was not interested in my reasons because they were biased, and that “you can give everything to Google and they can pay you. Or maybe it’s racism because they are white.” The Claimant concluded that “my trust and confidence in you has broken down because you are not giving objective reasons.”[21]Ms Belgrove submitted that the hearing should continue and that there was no reason for concern about the way in which it had been conducted so far.[22]In the absence of actual bias on the part of a judge, or the judge having a direct interest in the outcome of a case, the test is “whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased” (Lord Hope in Porter v Magill [2002] AC 357).[23]I do not believe that a fair-minded and informed observer would reach such a conclusion. It is true that I have decided the two substantive issues determined so far in this part of the hearing (dismissal on withdrawal and the amendment application) in favour of the Respondent and that, contrary to the Claimant’s preference, I have decided that the two applications concerning medical evidence should be decided together, rather than separately. Although at the time of the recusal application I had only given reasons orally for the last-named of these decisions, I believe that a fairminded and informed observer who had heard the parties’ submissions would realise that I could legitimately come to a conclusion in favour of the Respondent’s stance in respect of each of them.[24]It is also the case that I have previously decided a substantial issue – an extension of time for presenting case number 2200303/2023 – in the Claimant’s favour.[25]I consider that the fair-minded and informed observer would conclude that the basis for the Claimant’s application is her disappointment with, or disapproval of, the decisions I have made, rather than anything that would indicate a real possibility of bias. I should not, therefore, recuse myself from continuing to hear the case. Account of the hearing (3)[26]As I have already indicated, after I had given my decision not to recuse myself (but not the reasons for this, on the basis that I would be providing these in writing in due course) the hearing continued at about 12.30 on 10 November with submissions about the Claimant’s application for specific disclosure.[27]Before dealing with this, I will set out my reasons for the two earlier decisions, namely that concerning dismissal on withdrawal and the refusal of the Claimant’s amendment application. Dismissal on withdrawal[28]Rules 51 and 52 of the Rules of Procedure provide as follows: 51 Where a claimant informs the Tribunal, either in writing or in the course of a hearing, that a claim, or part of it, is withdrawn, the claim, or part, comes to an end…… 52 Where a claim, or part of it, has been withdrawn under rule 51, the Tribunal shall issue a judgment dismissing it (which means that the claimant may not commence a further claim against the respondent raising the same, or substantially the same, complaint) unless –(a) The claimant has expressed at the time of the withdrawal a wish to reserve the right to bring such a further claim and the Tribunal is satisfied that there would be legitimate reason for doing so; or(b) The Tribunal believes that to issue such a judgment would not be in the interests of justice.[29]In Khan v Heywood and Middleton Primary Care Trust [2007] ICR 24 the Court of Appeal considered the position under the former (2004) Rules. Although the Rules have changed, I find that the general principle stated in paragraph 79 of Wall LJ’s judgment in Khan remains applicable. This is that when proceedings are withdrawn, they are brought to an end and cannot be revived against the Respondent; but that this does not mean that, absent dismissal, a fresh claim on the same facts cannot be made.[30]On 24 October 2022 the solicitors then acting for the Claimant sent an email to the Tribunal which included the following: “We now write on behalf of the Claimant to:• Clarify (and where necessary apply under Rule 30 for the amendment to reflect) the claims which are being retained (“the retained claims”)• Give notice of withdrawal of all other claims under the same claim number”[31]The email continued that the list of issues showed that the parties had agreed that the heads of claim that remained for consideration and had not been withdrawn were (in summary) those of discrimination because of something arising in consequence of disability; failure to make reasonable adjustments; and unlawful deduction from wages. It then read: “NOTICE OF WITHDRAWAL OF ALL CLAIMS OTHER THAN THE RETAINED CLAIMS “Strictly on the Tribunal’s having noted and acknowledged that the retained claims under the above headings and on the facts listed therein set out in the above sub section of this email are not withdrawn, the Claimant by this email gives notice that she withdraws all and or any other claims presently understood to be currently pursued in the Tribunal as set out in her 9th version Amended Grounds of Claim submitted on the 21st January 2022 and is content for the Tribunal to dismiss those claims upon withdrawal [emphasis as in the original].[32]A preliminary hearing took place before me on 25 October 2022. In paragraph 2 of the Note to the orders made, I recorded that it was agreed that the complaints other than those listed in the orders (the same as listed in paragraph 30 above) were to be dismissed on withdrawal. I then listed the complaints that I understood were to be dismissed. These included “Unfair dismissal, including automatic unfair dismissal and constructive dismissal” and “Personal injury (with reference to the Law Reform (Personal Injuries) Act 1948 and the Offences Against the Person Act 1861)”.[33]In paragraph 3 of the Note I stated that I had asked the parties to check the list of complaints to be dismissed on withdrawal and to inform the Tribunal of any changes required, or that it was correct, within 7 days, whereupon I would issue a judgment dismissing the claims on withdrawal. It seems that the parties did not write to the Tribunal about the list: in any event neither I nor any other judge took any further action at that stage.[34]Following the preliminary hearing on 23 February 2023 EJ J Burns annexed to his orders a list of issues, which did not include any reference to any form of unfair dismissal complaint. At a further preliminary hearing on 28 July 2023 Employment Judge Snelson directed the provision of written submissions on the withdrawn claims. The Claimant responded to this on 10 August 2023 saying that she did not agree to the dismissal of the complaint of unfair dismissal, including automatic unfair dismissal and constructive dismissal.[35]Given her solicitor’s email of 24 October 2022, what is it that leads the Claimant to say that the unfair dismissal complaints should not be dismissed? She argues that, pursuant to rule 52(b), it would not be in the interests of justice for the Tribunal to do this, the reason for this being that she wishes to bring a complaint of automatic unfair dismissal under section 104 of the Employment Rights Act (as identified in her application to amend the claim). The Claimant emphasised this position with the rhetorical question, “if the amendment is allowed, would I accept dismissal on withdrawal?” I have described this question as rhetorical because the Claimant did not give a definitive answer to it; however, it helps to explain her opposition to a dismissal on withdrawal.[36]In this context of what it is that the Claimant wishes to achieve, I have given consideration to what two possible interpretations of what the withdrawal, and any consequent dismissal, of the unfair dismissal complaints might entail. One involves taking the view that withdrawing and dismissing a complaint of unfair dismissal involves withdrawing and dismissing all varieties of unfair dismissal complaints, whether or not pleaded; or, on a narrower approach, that withdrawing or dismissing a complaint of automatic unfair dismissal involves withdrawing and dismissing all varieties of automatic unfair dismissal complaints, whether or not pleaded. The other view would be that a withdrawal or dismissal only applies to the specific complaints made, such that (in the circumstances of the present case) dismissing a complaint of automatic unfair dismissal under section 103A would not mean that the dismissal also applied to a potential complaint under section 104.[37]I am unaware of any authority on the point. However, I find that in principle, a claimant can only withdraw a complaint that she has in fact made, and that any consequent dismissal on withdrawal would be similarly limited. I find that a complaint of automatic unfair dismissal under section 103A is different from a complaint of automatic unfair dismissal under section 104, such that withdrawing and dismissing a complaint under section 103A would not affect a complaint under section 104. I consider that this would clearly be the case if both complaints had been pleaded in the first instance, and only one of them withdrawn. Where (as here) only one was pleaded in the first instance, I find that a withdrawal of the complaint of “automatic unfair dismissal” should be interpreted as meaning the complaint of that nature that had in fact been made.[38]My conclusion, therefore, is that the Claimant does not need to rely on Rule 52(b) and the interests of justice in order to oppose a dismissal on withdrawal, with a view to raising a complaint under section 104. A dismissal of the complaint she has made under section 103A would not, in my judgement, operate to dismiss a complaint she has not yet made under section 104. In order to make the latter complaint, the Clamant needs to apply to amend the claim (as she has done), and the withdrawal and any dismissal of the section 103A claim might or might not be relevant to the exercise of discretion in that regard. There is not, however, any need for the Tribunal to refrain from dismissing the complaint under section 103A with a view to preserving the Claimant’s ability to seek to raise a complaint under section 104.[39]There is no other reason why it would not be in the interests of justice to dismiss the withdrawn complaints.[40]I therefore conclude that it is not the case that it would be in the interests of justice to refrain from issuing a judgment dismissing the unfair dismissal complaints as originally pleaded. The Claimant does not need to prevent or avoid a dismissal in order to apply to amend the claim in order to bring in a complaint under section 104. Amendment application[41]As already explained, the Claimant seeks to bring in by amendment a complaint of automatic unfair dismissal under section 104 of the Employment Rights Act.[42]Although both the Claimant and Ms Belgrove addressed the application by reference to the long-standing authority of Selkent, the principles to be applied when considering an amendment application have received more recent attention from HHJ Tayler in Chaudhry v Cerberus Security [2022] 172. HHJ Tayler emphasised the paramount importance of balancing the injustice or hardship of allowing or refusing the application, taking account of all relevant matters, including to the extent appropriate, those referred to in Selkent.[43]The Claimant presents the application as one in which no new factual allegations arise, as she relies on the facts pleaded in relation to the (withdrawn) complaint under section 103A. Those factual allegations remain in the pleading, although the section 103A complaint itself has gone. The Claimant submits that the interactions relied on can also be understood as allegations that statutory rights had been infringed under section 104(1)(b) and/or that, assuming that she was dismissed on 17 December 2021, presenting the claim on 8 December 2021 fell within section 104(1)(a).[44]As HHJ Tayler observed in Chaudhry, there will always be an element of at least perceived hardship when an amendment application is refused. This is that the claimant is not able to put forward a complaint that he or she wishes to pursue. I find that there would be such hardship to the Claimant in the present case were I to refuse the application.[45]Conversely, when looking at the position as it affects the Claimant, it is also relevant that she was legally represented when the unfair dismissal complaint was withdrawn in October 2022. There was no suggestion then of wishing to retain or bring in a complaint under section 104, even though (as the Claimant now points out) the facts that are now relied on in that regard had already been pleaded. (To use Selkent terminology, this could be regarded as relating to the timing and manner of the application).[46]The Claimant further submitted that an important issue in any complaint of unfair dismissal would be as to her mental capacity to resign, and that she did not have the evidence available to form a judgement about this until July 2023. She made the reasonable observation to the effect that it would have been wrong to make the application before having the information to justify it.[47]The Claimant then addressed the question as to why it was she did not make the application in July 2023, but in October. She said that making the application then would have derailed the hearing listed in October. She therefore took the alternative approach of seeking a declaration that she lacked capacity to resign, but once there was no longer the prospect of a full hearing in October, made the application to amend. I found that all of this showed that the Claimant took an informed decision not to apply in July or August 2023, because she considered that it was more in her interests to retain the full hearing if possible. That is an approach that she was entitled to take, but it indicates that the hardship to the Claimant of refusing the application would not be great, as it was something she was prepared to sacrifice in order to pursue a different aim.[48]Turning to the Respondent’s position, I find that it is not sufficient to say that there would be no hardship as the final hearing has been postponed to October 2024 and they now have ample time to prepare for the new claim.[49]I accept that it is unlikely that time to prepare as such would be a problem. Having said that, as there is usually a degree of hardship to a claimant in not being able to bring a new complaint, so there is usually a degree of hardship to a respondent in allowing a new complaint to be brought. In the present case, this would be a new complaint which bears a degree of resemblance to one that was originally brought in December 2021 and subsequently withdrawn in October 2022. I find that, following that withdrawal, the Respondent was entitled to proceed on the assumption that it was not facing any complaint of unfair dismissal.[50]I find that there would be hardship to the Respondent in having to prepare to meet such a complaint. The case was approaching a full hearing which would have been taking place at the present time, but which I postponed on 29 September 2023. I accept, because it must be the case, that the Respondent’s preparations for the full hearing were well advanced, and that they would not have included any preparations to meet a complaint of unfair dismissal. The hardship concerned is not (as I have said) that of lacking sufficient time to prepare, but that of having to revisit work already done from a new perspective. Witnesses would have to be asked about events which occurred around 2 years ago, in relation to a complaint of unfair dismissal which normally has to be brought within the statutory time limit of 3 months (plus any extension by virtue of early conciliation).[51]I find that the hardship and injustice that would be caused to the Respondent if I were to allow the application outweighs that which would be caused to the Claimant if I were not to. I therefore refuse the application. Claimant’s application for specific disclosure[52]This application has undergone some refinement and amendment in the course of correspondence since it was first made. The Respondent’s solicitor had prepared tables showing the current position as the Respondent understood it, including the parties’ respective stances, and had updated these when appropriate. The Claimant asked me to use as the basis of her application not the latest version of the Respondent’s table but paragraph 49 of her skeleton argument for the present hearing, plus her second skeleton argument, sent on the morning of 10 November.[53]I decided that I would use the Claimant’s skeleton arguments as setting out the application she was making, and the Respondent’s table for the purpose of identifying the Respondent’s position on the different elements of the application. The Claimant and Ms Belgrove also made oral submissions.[54]The principles to be applied by a Tribunal when considering an application for specific disclosure were summarised by Linden J in Santander v Bharaj [2021] ICR (Employment Appeal Tribunal) as follows: “(a) There can be no order for specific disclosure unless the documents to which the application relates are found to be likely to be disclosable in the sense that, in a standard disclosure case, they are likely to support or adversely affect etc the case of one or other party and are not privileged. Similarly, if disclosure is sought in relation to a category of documents, it must be shown that the category is likely to include disclosable documents. “(b) Even if this question is answered in the applicant’s favour, specific disclosure will only be ordered to the extent that it is in accordance with the overriding objective to do so. The “necessary for the fair disposal of the issues between the parties” formulation……..[is] shorthand for this second question.” “(c)…….the greater the importance of the disclosable documents to the issues in the case, the greater the likelihood that they will be ordered to be disclosed, but subject always to any other considerations which are relevant to the application of the overriding objective in the circumstances of the particular case and in particular the principle of proportionality.”[55]Similar observations were made by Choudhury P in Tesco Stores Limited v Element [2021] UKEAT 0228/20/1301 as follows: “(a) The Tribunal’s powers……are coterminous with those of the Court under CPR 31. “(b) As such, the guiding principle is not relevance but whether the documents are relied on by a party, or are likely to support or be adverse to a party’s case. A document falling within that description will be relevant. “(c) If relevance in that sense is established, the test for making an order for disclosure is whether it is necessary for the fair disposal of the proceedings. “(d) The Tribunal has a discretion as to whether to order disclosure. Such discretion must be exercised in accordance with the overriding objective.”[56]The Claimant seeks disclosure of the following documents or categories of documents.[57](a) Internal communications around disciplinary and resignation in October – December 2021. The Claimant refers to a disciplinary process, her resignation and the Respondent’s refusal to accept her retraction of the latter. She asserts that the Respondent has not disclosed any internal communications about these matters, and argues that it is unrealistic to suggest that none exist. The Respondent’s position is that it has conducted a reasonable and proportionate search and has provided all relevant documentation.[58]The limitations on a Tribunal’s ability to determine applications of this nature include that the parties are necessarily better informed than the Tribunal as to what has been disclosed so far, and that it is impractical for the Tribunal to conduct an exercise of going through all the documentation with a view to forming its own conclusions about what further documents might exist.[59]Having said that, I note that the Respondent has not expressly disputed the assertion that no internal communications about these matters have been disclosed. It is possible that there were no such communications, but (in my judgement) more likely that there would have been some. The Claimant’s case is that the disciplinary proceedings and the refusal to accept the retraction of her resignation were acts of discrimination. The documents sought, if they exist, would be likely to support, or be adverse to, the Claimant’s case. I consider that if there are such documents, their disclosure would be necessary for the fair disposal of the case, as they would be likely to cast light on the reasons why the relevant decisions were made. I find that it would be proportionate to make an order for disclosure as the issues are important and the categories sought not excessive in ambit. I therefore consider that I should make an order for disclosure of this category.[60]I then have to consider what form of order to make. A simple order for disclosure by way of list and copies is unlikely to be of any real use when a party says that they have already complied with their disclosure obligations. I have therefore ordered that the Respondent shall carry out a further search for these specific categories of documents and, in addition to disclosing any documents found, shall provide a disclosure statement summarising the nature of the search made.[61](b) Slack messages between the Claimant and Rosalia Schneider. The Claimant states that Ms Schneider was a senior employee with whom she shared her difficulties in the workplace via the “Slack” messaging system, and who provided insight into the Respondent’s culture and prevalent practices. She argues that the chats would establish discriminatory practices in the workplace. The Respondent contends that these documents would not be relevant or necessary; and in any event, that its data policy is such that they would no longer exist.[62]On the latter point, if a party states that it has made a proper search for a class of documents, and that they no longer exist, that will usually be taken as conclusive. The Tribunal will usually (not invariably) take that statement at face value and will not make an order for disclosure. The position in the present case is not quite the same as this, as the Respondent is not asserting that it has made a search. I take the assertion that the documents “would no longer exist”, however, as meaning that the Respondent states that its data policy is such that they should have been destroyed, and so cannot now exist unless there has been some failure of the policy. It seems to me that, while it is possible that the documents have somehow survived, it is unlikely, and that any order for disclosure would be unlikely to achieve anything. This is a factor to be considered when exercising the discretion as to whether to make an order, although I do not consider that, standing alone, it is determinative of the application.[63]A further consideration is that the issues to be determined by the Tribunal concern matters affecting the Claimant, rather than more general issues as to alleged discriminatory practices. I accept that evidence beyond that as to what happened to a claimant, and demonstrating the culture or practices in a workplace, may in appropriate cases be of assistance in determining, as a matter of probability, what occurred in relation to a claimant. I do not, however, find that such documents (if, which seems unlikely, they still exist) would be necessary for the fair determination of the issues before the Tribunal. The issues in the discrimination complaints arising from the period when the Claimant was employed by the Respondent broadly concern the disciplinary process undertaken by the Respondent; the Claimant’s resignation and attempted retraction of that; and the Claimant’s treatment in connection with a presentation. These issues are all particular to the Claimant, and I do not consider that an extensive investigation of the workplace culture is likely to assist the Tribunal in reaching its conclusions about them.[64]I do not, therefore, consider that these documents are necessary for the fair disposal of the issues between the parties, and I do not make an order for their disclosure. I should add that, if I had found disclosure of the documents to be necessary in that sense, I would not have made a straightforward disclosure order, given the probability that the documents no longer exist. I would have made an order in similar terms to that under (a) above.[65](c) Policies. The Claimant seeks the Respondent’s policies on neurodiversity, stress risk management, work capability assessment, employee training, dismissals (terminations and resignations), manager and HR training, interviewing and hiring, and capacity assessments. The Respondent states that no such policies exist.[66]I find no reason to doubt the Respondent’s assertion. The position is different from that under category (a) above, in that the Respondent’s stated position there was that a proper search had been carried out and all relevant documents disclosed – which is not the same as a positive assertion that there are no documents of the type sought. Unless there is reason to doubt it, a party’s statement to this effect is usually taken to be conclusive, and an order for disclosure will not be made. I find that to be the position here.[67](d) Training. The request is for “the date when their employees took the respective training. The Respondent is also requested to confirm whether any colleague of the Claimant from Interactive Agents team took any relevant training and if yes which one and which date”. Put in these terms, it is not entirely clear whether this is a request for disclosure of documents, or for the provision of information, or both. In any event, the Claimant contends that documents / information is necessary in order to understand whether there was appropriate support for disabled employees. The Respondent addresses the point in a different way, stating that it has carried out a reasonable and proportionate search for the training records of key custodians relevant to the issues.[68]Whether viewed as a request for disclosure or for information, I do not consider that what is sought is necessary for the fair disposal of the proceedings, or proportionate to order. The central issues in the case concern what happened in relation to the Claimant and why those things happened. Understanding what training relevant individuals undertook can assist in assessing what they are likely to have done in particular situations, and why they might have done it. The Tribunal will not, however, be engaged with wider questions along the lines of whether the Respondent’s employees were properly trained, or whether there was appropriate support for disabled employees in general, as opposed to for the Claimant specifically.[69](e) A higher resolution copy of the video of the meeting on 11 November 2021. The video itself has been disclosed. The Claimant contends that the picture quality is poor, and that it is difficult to see individuals’ facial expressions, which are relevant in order to tell how they were reacting to her. The Respondent disputes the relevance of facial expressions, but says that in any event they cannot produce a higher resolution version. The Claimant argues that they can, and maintains that they have admitted that they know how to do this. The Respondent denies admitting this.[70]I am not in a position to make a finding of fact about the Respondent’s technical capacity in this regard, or what may have been said about that. Nor do I find that being able to see individuals’ facial expressions at a meeting is something that is necessary for the fair disposal of the proceedings, or that it would be proportionate to order the video to be enhanced in order to achieve this, even if I were to be satisfied that this would be technically feasible.[71]I do not therefore order the preparation or disclosure of a higher resolution copy of the video. I would comment that, if the Tribunal hearing the claim in due course considers that it would be helped by this, having presumably seen the video and what it does and does not show, it could pursue this further with the parties.[72](f) Employee statistics. The Claimant seeks documents or information (in the event it makes no material difference to my decision how the request is regarded) concerning the following:72.1 Total number of employees, and ratio of males to females in the company.72.2 Number of employees with a disability with a breakdown by disability group (mental and physical) and male to female ration for each group.72.3 Percentage of employees with autism as a known disability, ratio of autistic males to autistic females in the company.72.4 Percentage of employees with bipolar / schizoaffective disorder as a known disability, ratio of bipolar / schizoaffective males to bipolar / schizoaffective females in the company.72.5 Number of misconduct cases involving employees with depression and/or anxiety and/or mental disability, ratio of male to female employees and how these were handled along with final resolution / conclusion.72.6 Number of misconduct cases involving non disabled employees, ratio of male to female employees and how these were handled along with the final resolution / conclusion.72.7 Research software engineers’ pay scales for bands L3, L4, L5, L6, L7.72.8 Average time to promotion between bands L3 to L4, to L5, to L6, to L7.72.9 Data / documents / records showing length of service of exemployees with disability (mental and physical) in the firm along with gender, type of disability and reason for termination of employment.72.10 Number of cases where requests to rescind resignation were made and outcome of each with reasons. Number of cases where such request were made with an overlap of mental illness and/or any disability (mental or physical) along with the decision of the firm on them and male to female ratio.[73]I find that disclosure of documents of this nature, and/or the provision of information of this nature, is not necessary for the fair disposal of the proceedings. The Claimant’s argument is essentially that documents or information of this nature would show the Respondent’s practices in general with regard to disabled people; would show whether or not her case was a “one off”; and would show the interplay (if any) within the Respondent’s organisation of the characteristics of disability and sex.[74]The difficulty with the Claimant’s argument is that the Tribunal is not directly concerned with the Respondent’s practices in general: it is concerned with the complaints of unfavourable treatment because of something arising in consequence of disability; failure to make reasonable adjustments; and unlawful deduction from wages (in the first claim); and of discrimination because of something arising in consequence of disability and/or victimisation (in the second claim). These complaints all arise from events affecting the Claimant, not the workforce at large.[75]I consider it unlikely that broad statistics such as the ratio of males to females in the company, the number or percentage of employees in the company with particular or any disabilities, or the number and outcome of disciplinary proceedings involving male, female, disabled and non-disabled employees would demonstrate anything that would assist the Tribunal in its task. It is also likely that, as an exercise of locating, considering and disclosing documents, or of gathering and presenting information, this would consume extensive resources. On that point, it is not sufficient in my judgement to say that the Respondent has extensive resources: that is not enough to justify requiring it to use resources on such an exercise.[76]I accept that there are occasions when a Tribunal can draw inferences from statistics such as the percentage of employees with particular protected characteristics at particular levels within an organisation’s structure, or from pay levels, which bear on an individual’s complaint, perhaps about indirect discrimination or matters such as not being promoted when that might otherwise have been expected. The issues in the present claims are not, however, of that nature. I do not consider that documents or information of this nature are necessary for the fair disposal of the issues; nor that it would be proportionate to require the Respondent to conduct such an exercise.[77]I therefore make the order indicated above under category (a), but make no order in respect of the other categories.