Ms S Messi v Casterbridge Tours Ltd and Others: 2213167/2024 and Others
EMPLOYMENT TRIBUNALS
Case No 2213167/2024
Between
Ms S MessiClaimantCasterbridge Tours Ltd and OthersRespondent
Before
Employment Judge NicolleIn person for claimantMr G Leadbetter (instructed by Counsel.) for respondentDate 25 October 2024
JUDGMENT
[1]The application for interim relief under section 128 of the Employment Rights Act 1996 fails and is dismissed.
REASONS
[2]Oral reasons were given to the parties on 23 April 2024. The Claimant requested written reasons which will be provided as soon as reasonably practicable. EMPLOYMENT TRIBUNALS Claimant: Ms S Messi Respondent: Casterbridge Tours Limited London Central: by CVP in public as an Open Preliminary Hearing on 23 April 2024 Before: Employment Judge Nicolle Representation: Claimant: In person Respondent: Ms G Leadbetter, of counsel. RULING[1]The application for interim relief under section 128 of the Employment Rights Act 1996 (the ERA) fails and is dismissed.[2]Oral reasons were given to the parties on 23 April 2024. The Claimant requested written reasons.[3]The written reasons are somewhat longer than the oral judgment given with a view to the Claimant fully understanding the basis upon which her application failed. This is particularly the case given the content of her email of 15:35 on 23 April 2024 when she said that I had not referred to all of her case law authorities and written submissions. The reason for not doing so was that I did not consider that they were germane to the issue I had to determine namely whether it was likely that a tribunal would find that she made a protected disclosure and that it was the reason or principal reason for her dismissal. 1 of 11
Background
[4]This is an application brought for interim relief following the Claimant’s dismissal ostensibly on the grounds of redundancy on 29 February 2024. The Claimant made some initial points and applications. I permitted her to have an accompanying representative to take notes on her behalf. However, I declined her application for a fully constituted tribunal panel explaining that this would not be normal and interim relief applications are almost inferably heard by a judge sitting alone. Further, I rejected her application pursuant to s.95 of the ERA to be able to cross examine the Respondent’s witness. I explained that this would be wholly outside the normal scope of an interim relief application which involves a determination as to the likelihood of a claim succeeding based on the documents and the parties’ submissions.[5]I was provided with significant documents in advance to include a skeleton argument from the Respondent, case law authorities referred to within that skeleton argument, a plethora of documents sent by the Claimant, which set out her legal arguments and the evidence upon which she sought to rely, a witness statement from Jessica Morris, International Human Resources Business Partner at WorldStrides, which is the parent company of the Respondent, (Ms Morris) and a bundle of documents comprising 417 pages. Of that total 165 pages related directly to the claimant’s employment with the respondent and the remainder comprising of decisions from other tribunal applications made by the Claimant over the previous six years. I did not read these decisions. They had been included within the bundle by the Respondent as evidence of the Claimant’s proclivity to pursue what they contend were unsuccessful tribunal applications. The Claimant’s submissions[6]The Claimant was given the opportunity to make submissions. She argues that her redundancy was a sham and she should be granted interim relief pursuant to s.128 of the ERA 1996. She relies on a protected disclosure she says was made in a telephone call with Ms Morris at 2pm on 29 February 2024. Ms Morris disputes that such a call took place This related to an ongoing issue the Claimant had regarding the basis upon which she was entitled to receive payment for sickness absences and holiday and there had been an ongoing dialogue on this issue.[7]At approximately 4pm that afternoon the Claimant was called to a meeting at which she was advised that her position was redundant. The Claimant says that her redundancy was a sham. She disputes the Respondent’s evidence that 63 people worldwide were affected. Her evidence being initially that she was the only person who was affected but then clarified that there were five or six other individuals including herself who were made redundant at this time. She nevertheless says that her own dismissal was a sham and the real reason was that she had made a protected disclosure that the Respondent had breached her statutory rights to holiday and sick pay. She contends that the Respondent fabricated evidence of her poor performance. 2 of 11[8]I read and took account of the case law authorities the Claimant referred to in her submissions. This included the judgment of His Honour Judge James Taylor in Cox v Adecco and Others UK EAT /0339/19/AT and the Supreme Court’s Judgment in Royal Mail Group Limited v Jhuti [2019] UK SC 55. In respect of Cox v Adecco I was satisfied that I knew what the Claimant’s case was before I decided whether it had a reasonable prospect of success. In respect of Jhuti I accepted that the real reason for her dismissal was likely to have been redundancy based on the chronology and documentary record. Therefore I did not consider that this was a case where the real reason was hidden from the decision maker behind an invented reason. The Respondent’s submissions[9]The Respondent produced evidence of a genuine redundancy situation. They refer to various organisational structure charts. The Respondent accepts they do not show all of the 63 redundancies but just those which were within the Finance Department, approximately six from a total of 63. They say there is no one carrying out the Claimant’s role of Accounts Payable Clerk in the UK with those now carrying out her role being based in the US.[10]The decision to identify the Claimant’s role as being at risk of redundancy was made substantially in advance of her alleged protected disclosure which they dispute the existence of for various reasons.[11]Ms Leadbetter says this is not a marginal case, that the redundancy process predated the allege protected disclosure. The Claimant contends that April Martin, the Claimant’s Line Manager (Ms Martin) had predetermined the situation from 4 January 2024. Ms Leadbetter says that this would be wholly inconsistent with the Claimant’s case of a protected disclosure on 29 February 2024 being the causative reason for her dismissal later that day. He says performance concerns were already being discussed, there was contemporaneous evidence of a redundancy process, that the public interest is not engaged in the Claimant’s alleged protected disclosure but rather this was a case of the Claimant raising concerns regarding her own situation which had in any event been resolved. Relevant facts and chronology[12]The Claimant was employed as an Accounts Payable Clerk from 3 July 2023 until her dismissal. Ms Morris says that Ms Martin had started having issues with her performance from as early as 24 August 2023 and that the termination of the Claimant’s employment was being considered from a relatively early stage. She says that the restructuring in the Finance Team was ultimately the responsibility of Maureen Boisvert, SVP of Accounting and Financial Operations (Ms Boisvert ) whose target was to make a $1.1 million of cost savings.[13]In an email from Ms Martin on 24 August 2023 she said: “Hi there we are having issues with my new AP employee [referring to the Claimant], do you have time to chat today”.[14]On 5 February 2024 in an email from Ms Martin to Ms Boisvert she said: “This BCG Org Redesign could be a good opportunity to of service (might be a slight typo) Ms Messi the AP Clerk in the UK is who I’m referrer believe she would be in agreeance (again probably a typo). She has not been reliable, not been efficient for many months, my 3 of 11 understanding is that she has 7+ days for sickness and yet to provide a doctors note. Ms Boisvert replied: “I actually already discussed this with Charity and emailed April this am”.[15]And then on 8 January 2024 an email from Ms Boisvert to Lee Nicholas, copied to others, identifying a cost saving of the Claimant’s salary of just over $59,000. The Respondent says this is clear evidence that the Claimant’s inclusion within the proposed redundancy process had been articulated at a relatively early stage.[16]On 7 February 2024 an email from Ms Martin said: “This is really bad. She starts late, [referring to the Claimant], does the bear minimum and does not communicate with the team at all. She completes small tasks first thing and then does nothing else for the remainder of the day for Worldstrides. She is on task with saying good morning, taking lunch, goodbye for the evening as if she has been working all day”.[17]At 1103 on 29 February 2024 there was an email exchange between the Claimant and Ms Martin. Ms Martin advises the Claimant that she had been told by Mohsina that sick time was credited back to her on the 24 February payroll. The Claimant responded: “Okay thanks I will check my pay slip, thanks for getting back to me and confirming. The Claimant says that she called Ms Morris at 2pm as there was still an outstanding issue. Ms Morris disputes that such a call was made. The Claimant says the sum had not yet been credited but when I questioned her on this she said it was not until after her redundancy was advised at about 4.30pm that she received and checked her pay slip to see that the omission still existed. She stays there was still uncertainty. She says that she was concerned that others could be affected and therefore that the public interest was engaged as the Respondent was not complying with its obligations to pay correct contractual and statutory sick and holiday pay in the UK.[18]The Claimant attended a short meeting and her position was made redundant as confirmed in a letter dated 29 February 2024 which states: “I am writing to confirm that we have taken the decision to terminate your employment for reasons of redundancy”.[19]What then happened in terms of garden leave need not concern as the only issue I need to address for the purposes of the interim relief application is what the reason or principal reason was for the Claimant’s dismissal. Was it redundancy as the Respondent asserts or was redundancy a sham and the real reason was the protected disclosure as the Claimant argues.
The Law
[20]I have to apply the relevant law for an interim relief application. The relevant sections of the ERA are sections 43B, 103A, 128 and 129. 43B Disclosures qualifying for protection. (1) In this Part a “ qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a)that a criminal offence has been committed, is being committed or is likely to be committed, 4 of 11 (b)that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c)that a miscarriage of justice has occurred, is occurring or is likely to occur, (d)that the health or safety of any individual has been, is being or is likely to be endangered, (e)that the environment has been, is being or is likely to be damaged, or (f)that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. (2)For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory. (3)A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it. 103A Protected disclosure. An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure. 128 Interim relief pending determination of complaint. (1)An employee who presents a complaint to an employment tribunal that he has been unfairly dismissed and— (a)that the reason (or if more than one the principal reason) for the dismissal is one of those specified in— (i)section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A, or (ii)paragraph 161(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, or (b)that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of section 104F(1) and the condition in paragraph (a) or (b) of that subsection was met, may apply to the tribunal for interim relief. (2)The tribunal shall not entertain an application for interim relief unless it is presented to the tribunal before the end of the period of seven days immediately following the effective date of termination (whether before, on or after that date). 5 of 11 (3)The tribunal shall determine the application for interim relief as soon as practicable after receiving the application. (4)The tribunal shall give to the employer not later than seven days before the date of the hearing a copy of the application together with notice of the date, time and place of the hearing. (5)The tribunal shall not exercise any power it has of postponing the hearing of an application for interim relief except where it is satisfied that special circumstances exist which justify it in doing so. S 129 Procedure on hearing of application and making of order. (1)This section applies where, on hearing an employee's application for interim relief, it appears to the tribunal that it is likely that on determining the complaint to which the application relates the tribunal will find— (a)that the reason (or if more than one the principal reason) for the dismissal is one of those specified in— (i)section 100(1)(a) and (b), 101A(1)(d), 102(1), 103 or 103A, or (ii)paragraph 161(2) of Schedule A1 to the Trade Union and Labour Relations (Consolidation) Act 1992, or (b)that the reason (or, if more than one, the principal reason) for which the employee was selected for dismissal was the one specified in the opening words of section 104F(1) and the condition in paragraph (a) or (b) of that subsection was met. (2)The tribunal shall announce its findings and explain to both parties (if present)— (a)what powers the tribunal may exercise on the application, and (b)in what circumstances it will exercise them. (3)The tribunal shall ask the employer (if present) whether he is willing, pending the determination or settlement of the complaint— (a)to reinstate the employee (that is, to treat him in all respects as if he had not been dismissed), or (b)if not, to re-engage him in another job on terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed. (4)For the purposes of subsection (3)(b) “terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed” means, as regards seniority, pension rights and other similar rights, that the period prior to the dismissal should be regarded as continuous with his employment following the dismissal. 6 of 11 (5)If the employer states that he is willing to reinstate the employee, the tribunal shall make an order to that effect. (6)If the employer— (a)states that he is willing to re-engage the employee in another job, and (b)specifies the terms and conditions on which he is willing to do so, the tribunal shall ask the employee whether he is willing to accept the job on those terms and conditions. (7)If the employee is willing to accept the job on those terms and conditions, the tribunal shall make an order to that effect. (8)If the employee is not willing to accept the job on those terms and conditions— (a)where the tribunal is of the opinion that the refusal is reasonable, the tribunal shall make an order for the continuation of his contract of employment, and (b)otherwise, the tribunal shall make no order. (9)If on the hearing of an application for interim relief the employer— (a)fails to attend before the tribunal, or (b)states that he is unwilling either to reinstate or re-engage the employee as mentioned in subsection (3), the tribunal shall make an order for the continuation of the employee’s contract of employment. A qualifying protected disclosure[21]In s.43B what is being relied on by the Claimant as a qualifying disclosure is that a person has failed is failing or is likely to fail to comply with any legal obligation to which he is subject.[22]A qualifying disclosure must be made in circumstances prescribed by other sections of the ERA, including, under Section 43C, to the worker’s employer.[23]In Kilraine v Wandsworth LBC [2018] ICR 1850 the Court of Appeal clarified that “allegation” and “disclosure of information” are not mutually exclusive categories. What matters is the wording of the statute; some “information” must be “disclosed” and that requires that the communication have sufficient “specific factual contents”.[24]Whether a particular disclosure of information, “tends to show” a breach of a legal obligation in the absence of any reference to a legal obligation will be a question of fact in each case. 7 of 11[25]What does matter is that the Claimant has a reasonable belief that the information disclosed tends to show one or more of the matters in S43B (1). In Kraus v Penna Plc [2004] IRLR 260 at para 24 the Employment Appeal Tribunal held that “likely” in this context means “more probable than not”.[26]In the light of Babula v Waltham Forest College [2007] EWCA Civ 174, [2007] ICR 1026 what is necessary is that the tribunal first ascertain what the claimant subjectively believed. The tribunal must then consider whether that belief was objectively reasonable, i.e. whether a reasonable person in the claimant’s position would have believed that all of the element of S43B (1) were satisfied i.e. that the disclosure was in the public interest, and that the information disclosed tended to show that someone had failed, was failing or was likely to fail with the relevant legal obligation. The Court of Appeal emphasised that it does not matter whether the claimant is right or not, or even whether the legal obligation exists or not.[27]The reasonableness of the worker’s belief is determined on the basis of information known to the worker at the time the disclosure is made: Darnton v University of Surrey [2003] ICR 615.[28]It is necessary that the disclosure was in the “public interest”. The Court of Appeal in Chesterton Global and another v Nurmohamed [2017] EWCA Civ 979[2018] ICR 731 set out relevant criteria against which to assess the existence of the public interest to include:• the numbers in the group whose interest the disclosure served;• the nature of the interest affected and the extent to which they are affected by the wrongdoing disclosed;• the nature of the wrongdoing disclosed; and• the identity of the alleged wrongdoer.[29]It is possible to aggregate separate incidents to amount to a composite disclosure: see Norbrook Laboratories (GB) Ltd v Shaw [2014] ICR 340 EAT. The threshold for interim relief under section 128 of the ERA[30]The case law is clear. In Taplin v C Shippam Limited [1978] ICR 1068 the EAT stated that “likely” in this context means something more than a reasonable prospect of success and something more than a 51% prospect of success. The EAT approved the expression adopted by the tribunal at first instance namely that there should be a pretty good chance of success. 31. in Ministry of Justice v Sarfraz UK EAT/0578/2010 Underhill J in the EAT cited Taplin stating that the essential point that emerged from it was that “likely connotes something nearer to certainty than mere probability”. Discussion and conclusions 8 of 11
Discussion and conclusions
[32]Consideration of whether it is likely that the Tribunal will find the reason or principal reason for the dismissal was that the Claimant made a protected disclosure involves two elements being, is it likely that the Tribunal will find that she made a protected disclosure and secondly is it likely that the Tribunal will find that her doing so was the reason or principal reason for her dismissal.[33]I have to decide whether it is likely in the sense discussed above that a tribunal will find that the reason for the Claimant’s dismissal was not a redundancy situation but the fact that she had made the disclosure relied on, namely that in a telephone call with Ms Morris at about 2pm on 29 February 2024. I have to approach this task by looking at the various elements of what is required to demonstrate a protected disclosure and then ultimately what the reasonable principal reason for her dismissal was. Did the Claimant make a protected disclosure?[34]As to whether there was a protected disclosure it is important to emphasis that at this stage I am simply applying a threshold of likelihood of the claim succeeding. I am not making a definitive judgment on these points as that would be a matter for a full hearing with the tribunal having heard all the evidence.[35]As to whether the Claimant made the alleged disclosure to her employer there is a dichotomy in the evidence. The Claimant asserts that she did, the Respondent asserts that she did not. I find that the likelihood threshold has not been met in respect of whether an alleged disclosure was made. There is clearly uncertainty. The Claimant’s position directly contradicts the evidence of Ms Morris. Further, there is doubt as to whether the email exchange which is exhibited between the Claimant and Ms Morris and Ms Martin at about 11am on 29 February 2024 would have resulted in the Claimant then telephoning Ms Morris at 2pm. The issue appeared to have been largely resolved at 11am. The Claimant says that she did not receive the payslip with the continuation of the oversight until 4.30pm. As such it is not clear that there was any reason at 2pm for the Claimant to make a call to Ms Morris. There is clearly doubt and as such the level of likelihood has not been met.[36]As to whether actually made, was likely to constitute a protected disclosure I do not consider that the threshold likelihood has not been met. This is not a definitive decision at this stage but there must be significant uncertainty as to whether at 2pm the Claimant was making a disclosure that she believed to show a breach of a legal obligation given the earlier communications.[37]As to whether the Claimant’s belief was reasonable that dove tails with the conclusions given above. There must at least be doubt and as such it does not meet the likelihood threshold.[38]As to whether the public interest was engaged there is considerable doubt as to whether that test would be met. This is a case which would arguably go beyond Chesterton in terms of what the public interest amounts to. In effect there are at least grounds to surmise that the Claimant’s concern was a personal one in relation to what payments she would receive for holiday and sick pay. Whilst it may have had broader applications with other employees similarly affected in the UK that is not necessarily in itself sufficient for a public interest engagement. Again this element of the case is not at 9 of 11 the level of persuasiveness that it would be appropriate to say it fulfilled the Taplin and Sarfraz likelihood threshold. What was the reason or the principal reason for dismissal?[39]I accept that the Respondent’s evidence that a genuine redundancy situation existed. The Claimant acknowledges that there were five or six redundancies. The Respondent says that the remainder of a global total of 63 were outside the Finance Department.[40]I find that there is very significant evidence that a redundancy process had been in play from at least early January 2024 and the Claimant’s name had been specifically earmarked as potentially at risk of redundancy from 8 January 2024.[41]I accept that there was a true redundancy situation. It is not necessary for me to say whether there were 63 redundancies but clearly there were redundancies. It was not the Claimant alone and as such the likelihood threshold for saying that the principal reason for her dismissal was that she had made a protected disclosure is not met and in my opinion falls far short of that necessary threshold. Further, whilst the Claimant says that I was not provided with evidence that 63 people were made redundant that was not something I needed to reach my conclusion. The Claimant acknowledged that five or six employees were made redundant and the Respondent’s position was that the organisational charts were confined to the Finance Department and the total of 63 redundancies was worldwide figure.[42]There had also been, and it is evidenced from Ms Martin as early as August 2023, concerns regarding the Claimant’s performance. Whilst performance is not put forward as the reason for redundancy it would in itself provide legitimacy for her inclusion in a redundancy process. That would not necessarily be consistent with a fair redundancy dismissal but that is not the issue I need to determine. The only issue I need to determine is what the reason or principal reason was for dismissal. Whether it would have been a fair reason had it been an ordinary unfair dismissal claim is not the issue. The issue is what was the reason or principal reason for her dismissal. The Claimant says it was the protected disclosure and the Respondent says the Claimant was redundant and that her poor performance meant that the redundancy situation was a convenient opportunity for her job/position to be deleted.[43]Whilst the Claimant contended that evidence regarding her performance was fabricated by Ms Martin and Ms Morris since 25 August 2023 I did not consider the question of performance needed to be assessed in detail. The only issue I needed to determine was whether it was likely that the Claimant would succeed in demonstrating that she had made a protected disclosure and that it was the reason or principal reason for her dismissal. Given that I found that a genuine redundancy was likely to have existed and that the Claimant was unlikely to succeed in demonstrating that she had made a protected disclosure and that it was the reasonable principal reason for her dismissal, the question as to whether her performance was deficient from 25 August 2023 onwards was not of any significant relevance to that decision.[44]As such it was not necessary for me to consider whether a fair redundancy procedure was followed. It may well be that the Claimant’s individual redundancy was unfair but that is not the issue I have to address. 10 of 11[45]The only protected disclosure relied on by the Claimant was her alleged telephone conversation with Ms Morris at 2pm on 29 February 2024. Therefore it was not necessary to consider whether the evidence she provided to the EHRC on 28 February 2024 constituted a protected disclosure. In any event for the reasons set out the claim would not have succeeded even if it had given the finding I made that redundancy was likely to have been the reason or principal reason for dismissal. Final conclusion[46]So in conclusion the Claimant’s application for interim relief under s.28 of the ERA fails and is dismissed. Given my findings it was not necessary for me to make enquiries pursuant to S129 of the ERA as to whether the Respondent would have been willing to reinstate or re-engage the Claimant. EMPLOYMENT TRIBUNALS Claimant: Ms S Messi Respondent: Casterbridge Tours Limited London Central: by CVP in public as an Open Preliminary Hearing on 23 April 2024 Before: Employment Judge Nicolle Representation: Claimant: In person Respondent: Ms G Leadbetter, of counsel. Judgment 1. The Claimant’s application dated 21 May 2024 (and in various previous emails some of which were sent prior to the written reasons being requested and sent to the parties) for reconsideration of the Tribunal’s judgment on her application for interim relief under section 128 of the Employment Rights Act 1996 (the ERA) (the Judgment), is refused. 1 of 4 2. Oral reasons were given to the parties on 23 April 2024. The Claimant requested written reasons which were provided dated 29 April 2024 and sent to the parties on 16 May 2024.
Background
[1]This preliminary hearing was listed on 1 August 2024 to consider the respondents’ applications for strike out of the claimant’s claims.[2]The claimant has brought four separate claims which were joined together on 22 August 2024. The claimant worked for around six months at Casterbridge Tours Limited as an Accounts Payable Clerk. She was dismissed on 29 February 2024. The respondent says she was dismissed for redundancy. The claimant says she was dismissed because she made a protected disclosure.[3]Three of the claimant’s claims are against her former employer, Casterbridge Tours Limited (Casterbridge). Two of those also name as respondents, several individuals employed either by Casterbridge or its US parent company, Worldstrides International LLC (the Casterbridge respondents). The fourth claim names as respondents Mr Clinton-Davis (the solicitor for the respondents in the other three claims), and two employees of Worldstrides International LLC, Mr Kirchhoff, the CEO and Mr Fisher, Vice President of Human Resources.[4]Mr Clinton-Davis was represented separately by Ms Berry. The Casterbridge respondents (including Mr Kirchhoff and Mr Fisher) were represented by Ms Leadbetter. Documents and evidence[5]I had available to me at the hearing: A bundle put together by the respondent numbering 1754 pages, an authorities bundle with 10 authorities from Ms Leadbetter, an authorities bundles with 7 (different) authorities from Ms Berry, skeleton arguments from Ms Leadbetter and Ms Berry (23 pages and 7 pages respectively), a supplementary bundle of 9 pages from the claimant and submissions from the claimant totalling 11 pages. I adjourned the hearing for an hour at the beginning of the day to read documents to which the representatives referred me.[6]During the hearing, Ms Berry referred me to two LinkedIn posts from Mr Robertson which her instructing solicitor had just discovered. They were relevant to the conduct of the case, and I refer to them below.[7]During the hearing I was forwarded an email the claimant has sent to the tribunal at 11.43am, while the hearing was taking place. This was copied to 34 different email addresses.[8]Towards the end of his submissions, in response to one of my questions, Mr Robertson referred me to an email from the claimant dated 24 September 2024 at 3.55pm. This was not in the bundle, and I accepted it as part of the evidence. Previous hearings in these claims[9]A preliminary hearing took place on 23 April 2024 in which Employment Judge Nicolle rejected the claimant’s application for interim relief.[10]A strike out hearing in this claim was due to be heard on 7 August 2024 but was postponed until today on medical grounds, at the claimant’s request. FACTS Claimant’s litigation against other companies
FACTS
[11]The claimant is an experienced litigant. She has brought around 20 employment tribunal claims against other employers since January 2018. Several of these have been struck out and several dismissed. None have yet been successful.[12]In some of the other claims, as in this one, the claimant has put in multiple claims against the same employer. She has also made several applications for interim relief. Her claim forms tend to include very few details, and she does not particularise her claims. She has failed to attend many of the hearings listed in other claims.[13]The respondents assert that, unbeknown to Casterbridge, the claimant was employed by other companies at the same time as she was employed by Casterbridge, and that she has pursued a scheme of bringing spurious proceedings against numerous employers. Judgments from several of the other claims were in the bundle. I accept that many of them were spurious.[14]Mr Robertson said he had represented the claimant in a number of other cases the respondents mentioned. He did not challenge the respondents’ assertions about the claimant’s other cases. Correspondence from the claimant[15]I was referred to part 3 of the bundle which contained sample correspondence from the claimant. The respondents pointed out that this was only a small sample of the enormous amount of correspondence that they had received from the claimant. Even so, the bundle section containing correspondence between the parties, with the tribunal and with third parties amounts to over 250 pages.[16]The claimant has written a great number of emails to the respondent and others, including, for example, the Solicitors’ Regulation Authority (SRA) the Bar Standards Board (BSB), the judicial ombudsman, and MPs. Much of the claimant’s correspondence I was referred to demonstrated an obstructive and unhelpful approach. For example, in the emails between the parties on 10 April 2024, the respondent’s emails to the claimant were courteous and contained clear explanation. The majority of the claimant’s replies were unhelpful and made threats to the respondent.[17]Another example is the claimant’s emails on 18 April 2024. The claimant initially sent emails at the times: 7.57, 8.19, 9.27, 9.42, 12.14, 12.36, 12.56, 14.27 and 14.49. The majority of these emails were directed to the respondent’s solicitors and copied to the tribunal and frequently others. Many of them alleged wrongdoing on the part of the respondent’s solicitors. For example, emails to the SRA alleging that Mr Clinton was breaching SRA principles and using intimidation tactics and that the respondent’s trainee solicitor did not have a practicing certificate. She also accused the Casterbridge respondents’ solicitors of deceptive, vexatious and dishonest conduct. She provided no reasonable explanation for this save that the Casterbridge respondents’ solicitors were defending their client. These emails were copied to three different SRA email addresses, three different employment tribunal addresses and the respondents and their representatives. The claimant also sent an email to a large number of people, including the respondents, the respondents’ counsel, the SRA, the tribunal, the EAT, and others, referring to the solicitors making “false accusations” and accusing them of telling lies.[18]At 14.59 on 18 April 2024, the tribunal wrote to the claimant with a direction from EJ Snelson that her correspondence appeared vexatious and she was to send no further correspondence to the tribunal ahead of the hearing on 23 April. At 15.07 the claimant wrote to the tribunal, the office of the Employment Tribunal President, the President’s support office, JCIO general enquiries and the EAT accusing EJ Snelson of being unreasonable and not demonstrating impartiality.[19]The claimant sent several further emails in the afternoon of 18 April, to the respondent’s solicitors, regarding the bundle. This chain of correspondence demonstrates the solicitors’ efforts, over several emails, to assist the claimant with opening or downloading the bundle, first sending a link, then a pdf, offering to telephone her to talk her through how to open it and offering to send her a hard copy. The claimant’s responses were rude and uncooperative. She did not act on the respondent’s suggestions or accept the assistance offered.[20]Notwithstanding EJ Snelson’s direction on 18 April, the claimant continued to copy the tribunal into correspondence, writing, for example, on 19 April at 12.51, 16.48 and 17.07. After the hearing on 23 April 2024, the claimant continued to copy the tribunal into a great deal of correspondence. I have not seen the full extent of the claimant’s correspondence, but it is clear from the respondent’s contemporaneous emails that she continued to copy employees of Casterbridge, the SRA, the tribunal, and others into many emails that were irrelevant to those people and organisations, despite being told by the tribunal and the respondents’ solicitors to desist. Mr Robertson’s assurances about the conduct of the litigation[21]At the hearing, Mr Robertson acknowledged in general terms that the correspondence had been excessive. He assured the tribunal that if the claim were to go ahead, he would take control of the correspondence which would alleviate the burden of correspondence going forward. However, during the hearing the claimant sent another email to the tribunal (copying 34 different email addresses including MPs, a whistleblowing charity and the Equality and Human Rights Commission) containing a copy of an email she had sent to three addresses at the Equality and Human Rights Commission, a parliamentary email address, the data protection office, and many employees of Worldstrides as well as the respondent’s solicitor and counsel. Many of those copied into both emails did not appear to have a direct link with the tribunal proceedings.[22]Mr Robertson said that he had represented the claimant in a number of other claims she had made and that he had first-hand knowledge of what was needed to correct her claims and get them back on track. He said that the previous claims he had undertaken for the claimant he had rationalised and cut down to give her a reasonable chance of success, but they would “stick to [their] guns” on this one. He made various complaints about the respondents’ conduct of the litigation. Mr Robertson’s LinkedIn posts[23]The respondent brought to my attention two LinkedIn posts from Mr Robertson which appear to have been posted the night before the hearing. The first, entitled “A New Joust” said “Tomorrow I will be jousting with the firm Arnold & Porter. Right now they think that the 10 of them will be bullying a LiP Black woman into submission and getting her struck out by pulling the old vexatious and scandalous routine. They will be raising an eyebrow or 2 when they will find out they will actually be facing me a white male, who is rapidly getting up to speed with all the crazy stuff they have pulled. If anyone would like a login please let me know!!”. The second, entitled “Standards Are Out the Window” states “Just as an exercise I am going to make an example out of these clowns in the morning. They genuinely think they own the place.”[24]The posts refer to this hearing. Ms Berry described them as inappropriate, unreasonable and vexatious. Mr Robertson described the posts as “silly” and pointed out they do not identify this claim at all. He said that he did this as an exercise in each case to prove underhanded tactic by solicitors. He said there was nothing discriminatory in those posts. I checked my understanding of what Mr Robertson had meant and he confirmed that he had made those posts deliberately to test the respondents’ solicitors, to see if they would bring the posts to the tribunal’s attention. The claimant’s claims Claim Date Claim 1 (2213167/2024) 29/02/24 Claim 2 (2217721/2024) 28/03/24 Claim 3 (2218535/2024) 15/4/24 Claim 4 (2218554/2024) 16/04/24 Claim one[25]Claim one is against Casterbridge. In it, the claimant makes an application for interim relief. She also refers to whistleblowing, unfair dismissal and unlawful deduction from wages. The claims are unparticularised and contained in about three sentences.[26]The application for interim relief was heard on 23 April 2024 and rejected by Employment Judge Nicolle.[27]EJ Nicolle accepted that a genuine redundancy situation existed and that a redundancy process had been in play from at least early January. Applying a threshold of likelihood of the claim succeeding, he also found that it was unlikely that the claimant had made a protected disclosure. Claim two[28]Claim two is against Casterbridge and six individual employee respondents.[29]The claimant ticked the boxes for unfair dismissal; race, disability and sex discrimination; and all but one of the money claims boxes (notice, holiday and arrears of pay). In the free text box at 8.1 she says that she was unfairly dismissed for making protected disclosures on 29/2/24 and suggests the respondent breached her right to sick leave. At box 8.2, the claimant uses eight sentences to provide further details of her claim. About the whistleblowing claim, she says that she “made [a] protected disclosure in the public interest that [C]asterbridge tours is failing with their legal obligations on the [E]quality [A]ct, on the [UK] employment legislation law, on health and safety, and on legal obligation on data protec[tion] legislation.” She provides no further details about the protected disclosure. She complains again about the redundancy process. She goes on to say that “I am also getting paid less than my comparator. I was discriminated against, harassed, victimised and micromanage[d] on a daily basis since October 2023”. She provides no further details about an equal pay claim or a discrimination claim, save to state that she was discriminated against when she disclosed her disability to HR. She provides no information about her disability or the alleged discrimination. The claimant says that she received no notice pay, holiday pay or salary for March 2024 and is owed arrears of pay. She provides no figures. Claim three[30]Claim three is against the same respondents as claim two.[31]The claimant ticked the boxes for race, disability and sex discrimination and all the money claims boxes (notice, holiday, arrears of pay and other payments). In the free text box she wrote “whistleblowing and suffered a detriment”. At box 8.2 the claimant provides some brief details. She says that she is black African. She states that the principal reason for her dismissal was because she made a protected disclosure on 29 February 2024, but gives no details as to what the protected disclosure was. She says she was paid less than a comparator, Regi, who is white and male. She provides no further details of the nature of her equal pay claim. She refers to being selected for redundancy because she made a protected disclosure and because she was a union member; she complains about the redundancy process. She also makes a reference to being blacklisted but provides no details save for the assertion. Regarding the money claims, she says that she is “Owed notice pay, arrears of pay from July 2023- February 2024- underpaid by £4000, owed mental health day, sick pay (10days) and arrears of pay in December 23, January 2024.“ She also lists various heads of claims without giving further detail. Claim four[32]Claim four is against Mr Clinton-Davis, Mr Kirchhoff and Mr Fisher. Mr ClintonDavis is the Casterbridge respondent’s solicitor. Both Mr Kirchhoff and Mr Fisher are based in the USA and had no dealings with the claimant and never met her. They were involved tangentially in the redundancy process.[33]Mr Clinton-Davis came on the record on 9 April 2024 and claim 4 was presented on 16 April 2024. Mr Clinton-Davis’ only connection with the claimant is that he is representing her former employer and others in an employment tribunal claim. He has never met the claimant and was not her employer.[34]The claimant ticked the boxes for race, disability and sex discrimination; notice, holiday, arrears of pay and other payments and referred to “vicariously liability” and discrimination. Box 8.2 contains various applications, such as for the respondent’s response to be struck out. It also includes a complaint about the respondent failing to provide evidence of the claimant’s redundancy and not following their own policy or the Acas code. The details provided in box 8.2 are very brief and do not appear to give rise to a claim that the claimant is capable of bringing or that the tribunal has jurisdiction to hear. No details are provided about the discrimination or money claims referred to in the tick boxes at 8.1. Claimant’s draft list of issues[35]In a list of issues she sent to the respondents and the tribunal on 24th September at 3.55pm, the claimant provided the following list: Disability ( section 6 & schedule 1 of the equality Act 2010 ( "" EQA")) Direct discrimination ( section 13 EQA) Indirect discrimination ( section 19 EQA Discrimination arising from disability - section 15 EQA Failure to make reasonable adjustments ( section 20 & 21 EQA) & Failure to refer to OH Harassment ( section 26 EQA) Victimisation ( section 27 EQA) Protected disclosure- Detriment- Section 47B ERA Policies breached Acas code on grievance and disciplinary not followed Sex discrimination Act 1975 Equal pay- section 65-69 of the equality act 2010 Breach of Contract ( implied terms of my employment contract) Unlawful deductions of wages as defined in section 27 ERA ( pensions , bonus are wages, arrears of pay Breach of health and safety act 1974 Breach of the equality act 2010 Breach of pension law obligations Breach of employment rights act 1996 Breach of data protection legislation 2018 Breach of section 173 (3) DPA18- criminal offence Breach of GDPR & infringement of data privacy legislation Breach of human rights Act 1998- Article 6 and Article 8, Article 10 Vicariously liability and discrimination Retaliation for providing evidence to government bodies, MP, police and HR Not investigating grievance matters raised despite evidence sent Contempt of Court and Perverting the court of justice- criminal offence Denied me my statutory rights of being represented by an union representative during dismissal meeting Denied me my statutory rights to holiday leave, sick pay Breach of SRA principles Use of SLAPPS Claimant’s termination of employment[36]The claimant says that she was dismissed because, on 29 February 2024, at 2pm she raised a concern to HR that she had not been paid sick pay. The claimant says that at around 3.30pm she received a call from her manager and two people from HR telling her that her employment was being terminated due to redundancy. The claimant argues that the redundancy was a sham and her employment was terminated because she made a protected disclosure. The respondent contests this. It directed me to a number of contemporaneous documents in the bundle. These included an organisation chart on 12 January 2024 which shows the claimant’s name as one of nine members of staff identified for redundancy, and on 19 January 2024, a proposed organisational design chart which shows the claimant’s name and job title as a “closed position”.[37]The claimant’s manager had performance concerns about her from August 2023. These are illustrated in Teams chats: on 24 August 2023 between April Martin and Jessica Morris, in which Ms Morris provides advice about probationary periods and termination; on 31 October 2023 between the same individuals in which Ms Martin tells Ms Morris that she needs “assistance with process of [the claimant’s] termination”; and on 5 January 2024 between Maureen Boisvert and Ms Morris, in which Ms Morris suggested that “This BCG Org Redesign could be a good opportunity to exit her”. Maureen Boisvert replied, “I actually already discussed this with Charity and emailed April this AM we are on the same page!”. There was therefore a clear appetite to exit the claimant, and to use the reorganisation process to achieve that, by 5 January 2024.[38]The correspondence between the claimant and her (USA based) employer demonstrates a misunderstanding of the UK rules around sick pay. The claimant was given incorrect information about the level of sick pay to which she was entitled. An email on 19 February 2024 between Ms Morris and an employee in accounts records the fact of the misunderstanding and its rectification. Ms Morris confirms that the “UK guidebook” sick leave policy was being updated.[39]Teams messages show that on 29 February at 10.59am the claimant asked for an update about her sick pay. At 11.01 Ms Morris replied to say that she had understood it was credited back to the claimant in the February payroll. At 11.03am the claimant replied, “Okay thanks, I’ll check my payslip. Thanks for getting back to me and confirming”.[40]I was not directed to any contemporaneous evidence of the claimant contacting HR at 2pm.
LAW
[41]Rule 37(1) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 states: At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds: (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b)that the manner in which the proceedings have been conducted by or on behalf of the claimant … has been scandalous, unreasonable or vexatious.[42]Section 111 of the Employment Rights Act 1996 (ERA 1996) requires a claim of unfair dismissal to be brought against an employer: s.111(1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer.”[43]Section 108 ERA 1996 requires an employee to have been employed for two years in order to claim unfair dismissal.[44]Sections 111 and 112 of the Equality Act 2010 state: Section 111(1): A person(a) (A) must not instruct another(b) (B) to do in relation to a third person(c) (C) anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or (2) or 112(1) (a basic contravention) Section 112(1): A person (A) must not knowingly help another (B) to do anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or (2) or 111 (a basic contravention).[45]The parties referred me to a number of authorities. I considered all of them and have referred below to those relevant to my decision: 45.1. Bennett v Southwark London Borough Council [2002] IRLR 407 which explores the meanings of “scandalous” at paragraph 27. Without seeking to be prescriptive, the word “scandalous” in its present context seems to me to embrace two somewhat narrower meanings: one is the misuse of the privilege of legal process in order to vilify others; the other is giving gratuitous insult to the court in the course of such process. 45.2. Attorney-General v Barker [2000] 1 FLR 759 which explores the meaning of “vexatious” at paragraph 764. The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process. 45.3. Anyanwu v South Bank Student Union [2001] IRLR 305 is an authority for the proposition that discrimination and whistleblowing cases should only be struck out in exceptional cases. 45.4. The Court of Appeal in Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330, held that where facts are in dispute a case should be struck out only “very exceptionally” without testing the evidence and in Blockbuster Entertainment Ltd v James [2006] EWCA Civ 684 it described strike out as a “draconian power”. 45.5. In Ahir v British Airways Plc [2017] EWCA Civ 1392, the Court of Appeal said that: Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. 45.6. In Cox v Adecco Group UK & Ireland and ors [2021] ICR 1307 the EAT reminded employment tribunals that strike out is not a “short cut” to case management and that there has to be a reasonable attempt to identify the claims and the issues before considering strike out. The EAT held at paragraph 30 that: “There has to be a reasonable attempt at identifying the claims and the issues before considering strike out or making a deposit order. In some cases, a proper analysis of the pleadings, and any core documents in which the claimant seeks to identify the claims, may show that there really is no claim, and there are no issues to be identified; but more often there will be a claim if one reads the documents carefully, even if it might require an amendment. Strike out is not a way of avoiding rolling up one’s sleeves and identifying, in reasonable detail, the claims and issues;” 45.7. The EAT also said at paragraph 32 that: “The employment tribunal can only be expected to take reasonable steps to identify the claims and issues.” 45.8. In Hasan v Tesco Stores Ltd UKEAT/0098/16, the EAT confirmed that when an employment tribunal is considering whether to strike out a claim, it should first decide if any of the grounds in rule 37(1) have been established. If they have, the tribunal should then consider whether it should exercise its discretion to strike out. 45.9. In Thomas v Expansys UK Limited [2022] EAT 164, the EAT held that a tribunal may decide to strike out if no causation was pleaded in respect of a person who was alleged to have discriminated, where there were several opportunities to do so. 45.10. In Mechkarov v Citibank NA EAT 0119/17/DM, the EAT held that the tick boxes in an ET1 are not decisive and that a claim form must be looked at as a whole. 45.11. In Abegaze v Shrewsbury College or Arts & Technology [2010] IRLR 238, the court held that if a lesser sanction to strike out is appropriate, a case should not be struck out and in Bolch v Chipman [2004] IRLR 140, the court found that a party must have conducted proceedings unreasonably, not just behaved unreasonably. 45.12. Smith v Tesco Stores Ltd [2003] EAT 11 the EAT held that it was fair to strike out a claim under rule 37(1)(b) when the claimant was guilty of a “continued refusal to cooperate” with the respondent and the tribunal. 45.13. In Hargreaves v Evolve Housing and Support [2023] EAT 154, the EAT found that a tribunal should not make assumptions about the effects of the claimant’s conduct on the evidence in the claim in the context of a case where the tribunal had found that witnesses would be intimidated when giving evidence so a fair trial was not possible. 45.14. In Bird v Sylvester and another [2008] ICR 208 Laws LJ said that: The execution by the solicitor of his client’s instructions in the matter is not, as I see it, something that is properly to be treated as aiding in the particular context of section 33. That, I think, would prove too much and distort the operation of the statute. It would engage liability upon the shoulders of a solicitor in any case where, though for his part he was doing nothing more than acting on his instructions, those instructions involved some decision by his principal that might offend the discrimination provisions in the Race Relations Act 1976 and the Sex Discrimination Act 1975. (Section 33 of the Race Relations Act 1976 is broadly similar to sections 111 and 112 of the Equality Act 2020.) 45.15. In Nursing and Midwifery Council v Mrs A M Harrold [2016] EWHC 1078 the High Court held that a tribunal should make a finding that a claim is totally without merit if the claim was bound to fail. CONCLUSIONS Claim 4 against Mr Clinton-Davis and others.
CONCLUSIONS
[46]Although the claimant has ticked boxes for notice pay, holiday pay, arrears of pay and other payments, she has provided no further details. She hints at an unfair dismissal claim at box 8.2 but provides few details. These claims can only be brought against an employer.[47]The claimant has ticked the boxes for race, disability and sex discrimination but failed to provide any particularisation. It is impossible for the respondents in claim four to understand on what basis the claimant is making discrimination claims against them. No causation has been pleaded in the discrimination claim, as per Thomas v Expansys UK Limited [2022] EAT 164. The claimant has had ample opportunity to do so in the claim form, before the hearing and during the hearing. The only further details in the claim form relate to the redundancy situation.[48]Mr Robertson made no attempt to clarify the claimant’s claims during the hearing and I was not directed to any other clarification of the claimant’s claim save for her list of issues I have referred to above which only lists heads of claim. It is not reasonably possible to identify the nature of the claims in this case and the paucity of detail means that any amendment would essentially have to re-state the entire case. Referring to Cox, this is a claim where there really is no claim and no issues to be identified and not the type of claim the EAT identified in Cox where the claims could be clarified with an amendment. Mr Clinton-Davis[49]Mr Clinton-Davis has no connection with the claimant other than his position as the Casterbridge respondent’s solicitor. The claim against him was presented to the tribunal a week after he came on the record.[50]Mr Clinton-Davis has never been the claimant’s employer so the unfair dismissal and money claims must fail.[51]There is no suggestion that the claimant is bringing a claim referring to sections 111 or 112 of the Equality Act 2010. Even if the claimant were bringing a claim under those provisions, she does not make any allegation that Mr Clinton-Davis had done anything contrary to those provisions that amounts to discrimination. Simply carrying out a client’s instructions does not amount to a breach of section 111 (Bird v Sylvester and another [2008] ICR 208).[52]Taking the claimant’s case at its highest, no facts have been identified that could lead to a finding that Mr Clinton-Davis has discriminated against the claimant. The claimant has had opportunities to clarify her claim, in the extensive correspondence with the respondents and via her representative at the hearing. She has not done so. The bundle was over 1700 pages. I read many pages of it, including all those to which I was referred by the representatives and found no clarification of the claimant’s claims. I have taken reasonable steps to clarify the claim. Bearing in mind the danger of reaching this conclusion without hearing evidence, I conclude that there is no reasonable prospect of the facts necessary to liability being established (Ahir v British Airways Plc). Therefore, all the claimant’s claims against Mr Clinton-Davis have no reasonable prospect of success and are totally without merit.[53]In addition, given the timing of presenting the claim a week after Mr Clinton-Davis had been instructed and the facts that: there is no reasonable explanation for naming Mr Clinton-Davis as a respondent; the claims against him lack any sort of particularisation; and several of them can only be brought against an employer, I also find that the claims against Mr Clinton-Davis are scandalous and vexatious as they have been brought as a misuse of legal process and have no basis in law. Mr Kirchhoff and Mr Fisher[54]At the time she presented claim four, the claimant already had three other live claims against Casterbridge, her former employer, and various individual respondents. There has been no explanation as to why Mr Kirchhoff and Mr Fisher have been named as respondents, particularly when, aside from being very slightly involved in the redundancy process, they had no dealings with the claimant and no direct contact with her.[55]Neither Mr Kirchhoff nor Mr Fisher were the claimant’s employer, so cannot be liable for the unfair dismissal and money claims. The claimant has provided no details of the discrimination alleged. The tribunal has taken reasonable steps to identify the claims (as in paragraph 52 above). The claimant’s claims against Mr Kirchhoff and Mr Fisher therefore have no reasonable prospects of success and are totally without merit.[56]For those reasons, I also conclude that the claim has been brought as a misuse of legal process, to subject these two respondents to inconvenience, harassment and expense. It has no basis in law and is also scandalous and vexatious. Claim four conclusion[57]Although it is a draconian power, it is therefore appropriate to exercise the discretion to strike out the whole of claim four as it is scandalous and vexatious and has been brought as a misuse of legal process. Had I not struck it out on those grounds, I would have struck it out as it has no reasonable prospects of success. Claims 1 – 3: Scandalous or vexatious[58]All three of these claims name Casterbridge and two of them name the same six individual respondents. This follows a similar pattern to the claimant’s tribunal claims against other employers in that she has made multiple claims against the same respondents, included an application for interim relief, and included very few details in the claim forms.[59]Aside from claims 1-3, the claimant has brought many claims against many different respondents. She has had many of those claims, including several for interim relief, struck out or dismissed.[60]In claims two and three, she names six individual respondents but does not explain why they have been named or how they are relevant to her claim. She provides insufficient detail for the respondents to understand the case against them.[61]The relevant context for claims 1-3 includes: the claimant’s previous tribunal claims against other respondents; my findings about claim four of the present joined claims; the claimant’s excessive, discourteous and threatening correspondence; and the inclusion of an (unsuccessful) application for interim relief (as she had done in previous cases), which required the respondent to act quickly to respond.[62]Taking into account this context, I conclude that the purpose of the claimant in bringing claims 1-3 was to cause inconvenience, harassment and expense to the respondents. The claimant is using the court process to damage the respondents in terms of the time, cost and stress of defending these claims. This is a misuse of the legal process and is scandalous and vexatious.[63]I considered whether to exercise my discretion to strike out and concluded it would be appropriate in this case. In themselves, the four claims abuse the court process. Particularly in the context of the claimant’s previous claims, it is appropriate to exercise discretion to strike out.[64]Although I have struck out the claims on these grounds, I have also gone on to consider the respondents’ other arguments. Manner in which proceedings have been conducted[65]The claimant is an experienced litigant, having brought at least 20 claims and had considerable dealings with the employment tribunal over the previous six years.[66]Her conduct of proceedings in this case has been unreasonable. She has disregarded the overriding objective and failed to cooperate with the respondents. She has ignored instructions from the employment tribunal to cease contact. Her communications to the respondent have frequently been discourteous and greatly increased the work the respondents must do and therefore the costs they must incur (for example, the issue with the bundle referred to above). Her correspondence has been excessive. She has bombarded the respondents (and the tribunal) with an unreasonably high volume of correspondence copied to organisations and individuals apparently unconnected to the proceedings. She has tried to intimidate the respondents’ representatives by referring them to the SRA and the BSB where she has no reasonable grounds to do so. She has frequently copied wholly unrelated parties into correspondence about the proceedings. She has demonstrated a continual refusal to cooperate with the respondent and the tribunal to the extent that a fair trial is not possible (Abegaze).[67]The claimant does not tend to distinguish the different claims in her correspondence. The approach I have described has been consistent throughout the litigation with these respondents. She has therefore pursued all four of her claims with the same attitude. The manner in which she has pursued each of them has therefore been scandalous, unreasonable and vexatious.[68]When considering whether to exercise my discretion to strike out, I took into account that for much of the time she has pursued these claims, the claimant has been a litigant in person. Now, however, Mr Robertson is representing her. Mr Robertson said that in future, all correspondence would go through him. If there was a prospect of the claimant’s correspondence reducing to an acceptable level, maintaining a moderate tone and demonstrating cooperation with the respondent, it would, perhaps, not be appropriate to strike out the claim on these grounds. However, I concluded that that prospect was very unlikely. During the hearing, the claimant sent a further email to the tribunal, copied to many parties apparently unconnected to the claim. This means I am unable to rely on Mr Robertson’s assurances that all correspondence would go through him. In addition, I found Mr Robertson’s LinkedIn posts (referred to above) concerning. Mr Robertson’s explanation (that he had posted them on purpose so that the respondents would bring them to my attention) was surprising and I did not completely follow his rationale. The tone of his LinkedIn posts was not dissimilar to the claimant’s inappropriate tone to the respondent. I therefore had no confidence, even with Mr Robertson’s involvement, that the approach to proceedings on the claimant’s side would improve to a level that was not unreasonable or vexatious.[69]For those reasons, had I not concluded that the claims should be struck out because they are scandalous or vexatious, I would have struck them out for the manner in which they have been pursued, which has been scandalous, unreasonable and vexatious. Reasonable prospects of success[70]I have addressed this relatively briefly because I have already found that the claims should be struck out in two alternatives.[71]I have reminded myself of the elements the EAT set out in Cox, and the high volume of cases including Anyanwu, Ezsias and Blockbuster Entertainment Ltd which warn tribunals against striking out a discrimination or whistleblowing claim, as the case may be, where the facts are in dispute. I have borne in mind that strike out is a draconian power which I should only exercise if another, lesser, course of action is appropriate. I have taken the claimant’s case at its highest. Claim 1[72]The claimant refers to a whistleblowing, unfair dismissal and unlawful deduction from wages claim.[73]The facts of the whistleblowing claim are set out in the interim relief judgment. The judgment was in the bundle, as was the witness statement of the respondent’s witness at that hearing, both of which Ms Leadbetter referred me to.[74]I conclude that the claimant’s whistleblowing claim has no reasonable prospect of success. The contemporaneous documents demonstrate that Casterbridge had performance concerns about the claimant and started considering dismissal from August 2023, and by early January 2024 had decided to include the claimant in the redundancy process as it could be "a good opportunity to exit her". Her role has not been replaced. I do not need to decide if the redundancy process was likely to have been fair or not, because the claimant does not have the requisite service to bring a claim for unfair dismissal.[75]The contemporaneous correspondence shows that Casterbridge had made a mistake about sick pay, had rectified this and that the claimant knew this and was planning to check her payslip. Although there is no contemporaneous evidence that the claimant contacted HR at 2pm, even if she had done so, I conclude from the contemporaneous documents that she had been identified for inclusion in the redundancy process since January.[76]There was therefore a legitimate redundancy situation and significant performance concerns which Casterbridge hoped to eliminate by including the claimant in the redundancy. Even taking the claimant’s case at its highest and even if she did make a protected disclosure, the contemporaneous documents demonstrate that this was not the reason for her dismissal. She was dismissed due to redundancy.[77]The protected disclosure claim (and any automatic unfair dismissal claim brought on the same grounds) therefore has no reasonable prospects of success. If I had not struck out the claim on other grounds, I would have exercised discretion to strike out this claim as, based on the contemporaneous documents, I am satisfied that there is no reasonable prospect of the facts necessary to liability being established (Ahir v British Airways Plc) so this claim falls into the exceptional category identified by the EAT in Ezsias.[78]The claimant does not have the qualifying service to claim ordinary unfair dismissal so the tribunal must dismiss any such claim.[79]The claim for sick pay is not at all particularised in the claim but may be capable of identification with an amendment. Even though although it appears from the contemporaneous documents that Casterbridge believed the sick pay issue had been resolved, I did not conclude that the sick pay claim had no reasonable prospects of success. Claim 2[80]My conclusions regarding the redundancy and reason for dismissal also apply to claim two. Any such claims have no reasonable prospects of success and are totally without merit.[81]The unlawful deductions (including notice, holiday and salary pay) claim is not clearly particularised. However, taking the claimant’s case at its highest, that claim may be capable of identification with an amendment. I did not conclude that the unlawful deductions claim had no reasonable prospects of success against Casterbridge. It has no reasonable prospects of success and is totally without merit against the individual respondents because there is no jurisdiction for the tribunal to hear it against the individual respondents.[82]Regarding the remaining claims, the claimant asserts that she made protected disclosures that Casterbridge was failing its legal obligations and that she was discriminated against, micromanaged and overworked. She provides no details that explain causation or enable the respondents to understand the claims against them, either in the claim form or otherwise (Thomas v Expansys UK Limited). Her representative did not refer to any further details at the hearing. As I have said, the claimant has produced a great deal of correspondence in this claim and has been in touch with the tribunal on a frequent basis. Her representative did not direct me to any correspondence in which she explains who discriminated against her or what they did which amounted to discrimination. The same is true for the other claims. The facts are not therefore apparent from the claim form or other documents in which the claimant seeks to explain the claim (Cox). It would not be appropriate to permit an amendment because any amendment would need to effectively re-write the entire claim which would unfairly skew the balance of injustice and hardship against the respondent. Based on the claim form and the other documents I was referred to, there is no reasonable prospect of the facts necessary to liability being established. These claims therefore have no reasonable prospects of success and are totally without merit. Had they not already been struck out, it would therefore have been appropriate to exercise the discretion to strike out on this basis. Claim 3[83]The same conclusion and reasoning apply to the claims the claimant made in claim three. Most of these claims were repeated in the previous claims. She provides some further details about the unlawful deductions claim. My conclusions above apply, in that the claim is not clearly particularised, but taking the claimant’s case at its highest, that claim may be capable of identification with an amendment. I did not conclude that the unlawful deductions claim had no reasonable prospects of success against Casterbridge. It has no reasonable prospects of success and is totally without merit against the individual respondents because there is no jurisdiction for the tribunal to hear it against the individual respondents.[84]Regarding the other claims, the claimant repeats her concerns about a protected disclosure, the redundancy and discrimination. She said she was getting paid less than a comparator, Regi, described as white and male. She provides no further details about Regi or why he is an appropriate comparator, nor any details about the nature of her equal pay claim. She includes a reference to being blacklisted and being selected for redundancy because she was a union member. She provides no further details about these two new claims.[85]As above, there is insufficient detail in the pleadings to enable the respondents to know the case against them. It is not possible to discern the claimant’s case from the claim form and any other documents. Her representative has referred me to no other relevant documents. For the same reasons as claim two, it would not be appropriate to allow an amendment. Had the claims not already been struck out, it would be appropriate to exercise my discretion to strike out the claims as they have no reasonable prospect of success and are totally without merit. COSTS JUDGMENT 1. The claimant must pay: 1.1. Costs to Mr Clinton-Davies of £5,500 + VAT at 20% (A total of £6,600). 1.2. Costs to the Casterbridge respondents of £6,500+ VAT at 20% (A total of £7,800).
Background
[1]The claimant brought four separate claims, which were joined together on 22 August 2024, against Casterbridge Tours Limited and nine individual respondents. The respondents made an application for the claims to be struck out on the grounds they were scandalous or vexatious or had no reasonable prospects of success and the manner in which the proceedings had been conducted were scandalous, unreasonable or vexatious.[2]In a reserved judgment dated 25 October 2024, I concluded that all the claimant’s claims should be struck out because they were scandalous or vexatious. I also concluded that the majority of the claims had been conducted in a way which was scandalous, unreasonable and vexatious. I have not repeated my findings here, as they are set out in the reserved judgment.[3]The respondents made applications for costs and asked that they should be dealt with on the papers rather than at a hearing. I asked the claimant for her comments and received written comments from the claimant and her representative. Neither asked for a hearing, so I have considered the matter on the basis of the written submissions sent to me by all the parties. Parties’ written submissions[4]The respondent points to the judgment and says that the claimant comfortably satisfies the threshold for awarding costs, on multiple grounds. The respondents refer to the claimant’s background of persistent unsuccessful tribunal litigation, and her awareness of the risk that costs would be awarded as she has been ordered to pay costs in relation to several other tribunal claims. Regarding her means, the respondents say that the claimant has had multiple employers (and therefore multiple sources of income) at once. As a result, they anticipate she will find it easy to obtain future employment.[5]The claimant and her representative wrote to the tribunal separately. The claimant said she is on universal credit and that “London central is aware of my medical history since 2018”. She provided no further details.[6]The claimant’s representative, Mr Robertson, argued in his submission that the respondent should not have referred to previous cases and calls it an abuse of process. Mr Robertson referred to some “explicit directions” I gave about not considering submissions about previous cases. I am afraid I cannot recall giving any such directions, or saying something that might have been interpreted as such. I referred to the claimant’s previous cases in my judgment. They are a relevant part of the factual matrix to this claim. Regarding the claimant’s financial means, Mr Robertson referred to her being on universal credit and that she is unable to afford the costs being sought, but provided no evidence or further details.[7]After receiving the claimant’s and her representative’s responses to the respondents’ applications for costs, I wrote to the claimant to give her the opportunity to provide further evidence regarding her means. I explained in that letter that I did not have access to evidence she had provided in other cases.[8]I received a response from Mr Robertson on 14 December 2024, on behalf of the claimant (in which he identified himself as the claimant’s litigation friend). He included a screenshot of the Universal Credit payments the claimant received between April and November 2024. This showed that since April 2024, the least the claimant received was £0 (in April) and the most was £1093.45 (in October). Mr Robertson said that, “based on these figures” the claimant’s average monthly income was £714.41. Mr Robertson said the claimant had no savings or financial assets. He provided no evidence of why the Universal Credit payments fluctuated so widely nor any evidence about the claimant’s lack of savings or assets. He said that a disability impacted her ability to secure future employment, but provided not details of this, and said that previous employment tribunal judgements had “prejudiced her employability by creating a perception of her as a ‘serial litigant’, which unfairly undermines her prospects in the job market.”[9]Both respondents sent further submissions in essentially the same terms. Their arguments included that the tribunal should not take the claimant’s means into account. They pointed to the sparse evidence about her income, and also to the judgment in one of the claimant’s other tribunal cases, Messi v Change Grow which said she was employed by Change Grow Live from March to July 2024. For some of this time she was also receiving Universal Credit, suggesting that Universal Credit is not evidence that she was unemployed. The respondents also referred to a LinkedIn page which lists a Sandra Messi as an Account payable accountant at SunGard. However, as there was insufficient evidence that this referred to the claimant, I have not taken it into account as part of the evidence. Amounts claimed[10]Between them, the respondents have two representatives. Mr Clinton-Davis is separately represented by the firm Stephenson Harwood. The other respondents (the Casterbridge respondents) are jointly represented by the firm Arnold & Porter Kaye Scholer LLP. 10.1. Mr Clinton-Davies applies for costs in the sum of £5,500 plus VAT, made up of Counsel’s brief fees for the strike out hearing of £5,000 + VAT and £500 + VAT for Counsel’s assistance with the strike out application letter. 10.2. The Casterbridge respondents apply for costs in the sum of £9,750. This is made up of the brief fee for the interim relief hearing of £3,250 plus VAT and the fee for the strike out hearing of £6,500 plus VAT. Law Power to make an order for costs[12]The Tribunal has the power to order the payment of costs and witness expenses. The Employment Tribunal Procedure Rules 2024 rule 73 sets out the nature of these orders: 73.—(1)(a) A costs order is an order that the paying party make a payment to— the receiving party in respect of the costs that the receiving party has incurred while represented by a legal representative.[13]The Employment Tribunal Procedure Rules 2024 rule 74 sets out when a costs order or a preparation time order may be made: 74.(2) The Tribunal must consider making a costs order or a preparation time order where it considers that— (a)a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted, (b)any claim, response or reply had no reasonable prospect of success[14]The test for imposition of a costs order was established under the 2013 Rules of Procedure, but equally applies to the 2024 Rules. It is a two-stage test: first, a tribunal must ask itself whether a party’s conduct falls within rule 74(2); if so, it must go on to ask itself whether it is appropriate to exercise its discretion in favour of awarding costs against that party.[15]The decision to make a costs order is the exception rather than the rule. This was made clear in Yerrakalva v Barnsley Metropolitan Borough Council [2011] EWCA Civ 1255 in which Mummery LJ said: “The employment tribunal's power to order costs is more sparingly exercised and is more circumscribed by the employment tribunal's rules than that of the ordinary courts. There the general rule is that costs follow the event and the unsuccessful litigant normally has to foot the legal bill for the litigation. In the employment tribunal costs orders are the exception rather than the rule. In most cases the employment tribunal does not make any order for costs.” Costs are compensatory[16]In Lodwick v Southwark London Borough Council 2004 ICR 884 (18 March 2004), the Court of Appeal held that it remains a fundamental principle that the purpose of an award of costs is to compensate the party in whose favour the order is made, and not to punish the paying party.[17]Given that costs are compensatory, it is necessary to examine what loss has been caused to the receiving party. In Yerrakalva, the Court of Appeal held that costs should be limited to those “reasonably and necessarily incurred”.[18]Rule 82 of the Employment Tribunal Procedure Rules 2024 says that: In deciding whether to make a costs, preparation time, or wasted costs order, and if so the amount of any such order, the Tribunal may have regard to the paying party’s […] ability to pay.[19]A tribunal is not obliged by rule 82 to have regard to ability to pay, but it is permitted to do so. In Benjamin v Interlacing Ribbon Ltd EAT 0363/05 the EAT held that where a tribunal has been asked to consider a party’s means, it should state in its reasons whether it has in fact done so and, if it has, how this has been done. In Howman v Queen Elizabeth Hospital Kings Lynn EAT 0509/12, the EAT held that any tribunal when having regard to a party’s ability to pay needs to balance that factor against the need to compensate the other party who has unreasonably been put to expense. The former does not necessarily trump the latter, but it may do so.[20]In Arrowsmith v Nottingham Trent University [2011] EWCA Civ 79, the Court of Appeal held that when assessing means, a tribunal may take a party’s future earning potential into account. In Herry v Dudley Metropolitan Council UKEAT/0100/16 and Herry v Dudley Metropolitan Council and Governing Body of Hillcrest School UKEAT/0101/16, the EAT clarified that if a tribunal does so, it must give proper consideration to what that financial position might be.[21]In Saka v Fitzroy Robinson Ltd EAT 0241/00, the EAT held that a tribunal was able to take into account a claimant’s failed claim against a different respondent when ordering costs.
Conclusion
[22]Given my findings that the proceedings were scandalous or vexatious, and had no reasonable prospects of success, and that the way in which the majority of the proceedings were conducted was vexatious and unreasonable, the claimant’s conduct clearly falls within rule 74(2). The first limb of the two-stage test is satisfied.[23]I must therefore consider whether it is appropriate to exercise discretion in favour of awarding costs against the claimant.[24]I have considered the costs of the strikeout hearing and the interim relief hearing separately. Regarding the strikeout hearing, I have taken into account the points put forward by the respondents, the claimant and the claimant’s representative. I do not consider that the respondents have abused the process of an application for costs. The claimant’s claims against other respondents are relevant to the application for costs, as found in Saka v Fitzroy Robinson Ltd. The claimant should have been aware, from her previous experiences in the Tribunal, that a costs order may be made against her. In any event, the respondent had warned the claimant in one of its ET3s that it anticipated seeking costs if she pursued her claims.[25]I have taken into account that awarding costs in the employment tribunal is the exception not the rule. I have also taken into account my findings in the reserved judgment that the proceedings were scandalous or vexations, the majority had no reasonable prospects of success, and most of them were conducted in a way which was vexatious and unreasonable. This was in the context that the claimant is a serial litigant. She has had costs awarded against her in the employment tribunal in the past, so she knew the risk. She had been warned on multiple occasions by the respondent, and also been warned by the tribunal, that her conduct was unreasonable. The respondents have been put to considerable inconvenience and cost by the claimant bringing these wholly unmeritorious claims. It is appropriate that they are compensated. This is therefore an exceptional case in which it is appropriate to award costs.[26]However, I have decided not to award the costs for the interim relief hearing because it is not apparent from the interim relief judgment that the judge found the claimant had acted vexatiously, abusively, disruptively or otherwise unreasonably, or that the claims had no reasonable prospect of success (although he described many of them as not meeting the likelihood threshold). The claimant’s means[27]Although there is no requirement to take the claimant’s means into account, it is appropriate to do so in this case, particularly when the claimant has said she is on Universal Credit and raises her means as one of her main arguments against a costs award being made.[28]The difficulty I have, however, is that I do not have a very clear picture of the claimant’s means, despite having given her an additional opportunity to provide this evidence. I have seen evidence that the claimant received Universal Credit payments in varying amounts from May to November 2024, but no evidence that this was the claimant’s only income. Based on the judgment in the Change Grow case, I conclude that (for at least part of the time) Universal Credit did not represent the claimant’s only income. In addition, the Universal Credit amounts varied quite widely, but no explanation was given for this variation. In September and October 2024, for example, the payments were just over £1000. In November, it had dropped to £80.17. In May it was £333. It is not appropriate for me to speculate as to the reasons for this variation. However, these variations, and the evidence of other employment does mean that I do not have a full picture of the claimant’s income for this period. Mr Robertson’s reference to his income calculations being “based on these figures” suggests to me that he has looked only at the universal credit figures rather than the claimant’s income as a whole. The lack of evidence means that I have been unable to reach any conclusions about the level of the claimant’s current income, so have not been able to take this into account when assessing means.[29]The claimant says that her ability to obtain employment is limited by her disability and her previous tribunal cases. I have been provided with no evidence of disability in this claim. I accept that her multiple tribunal claims may well be a barrier to employment. The fact that this is a difficulty of the claimant’s own making does not change the fact that it is likely to be a barrier, to some extent, to obtaining new employment. I balance this against what the respondent says, which I also accept, that the claimant has been extremely effective in obtaining employment in the past, having had multiple employers at the same time, as evidenced by a number of her tribunal claims.[30]Based on her extremely effective record of obtaining employment, I therefore conclude that the claimant is likely to obtain employment at a similar salary in the future. Taking into account the barrier of her previous tribunal claims, I conclude this is likely to be within three to six months from now rather than a shorter period.[31]The claimant will therefore be in a position to pay an award in the relatively near future.[32]Both respondents have limited the costs they claim to Counsel’s fees, which only represents a small portion of their actual costs for this claim. The amounts they claim for the strike out hearing were therefore reasonably and necessarily incurred.[33]I have balanced the claimant's ability to pay with the need to compensate the respondents. Taking the claimant's future earning potential into account, I award the respondents the full amount they claim for the strike out hearing. (I note, that although I have not been able to reach a conclusion about the claimant’s current income, based on my finding about her future employment, it is unlikely that further details about her income would have made a difference to my conclusions, based on the principle in Arrowsmith v Nottingham Trent University [2011] EWCA Civ 79.)[34]The claimant must therefore pay: 34.1. Mr Clinton-Davies’ costs of £5,500 + VAT at 20% (amounting to £6,600) 34.2. The Casterbridge respondents’ costs of £6,500 + VAT (amounting to £7,800). Judgment approved by
Conclusion
[1]The employment judge apologises for the delay in responding to the claimant’s reconsideration request. This was because the judge did not receive it until 31 January 2025.[2]The reason for the refusal is that there is no reasonable prospect of the original decision being varied or revoked for the following reasons: 2.1. Many of the authorities to which the claimant has referred in her reconsideration application are authorities to which she did not refer at the hearing. The tribunal took careful account of the legal authorities to which each party referred at the hearing. Where they are not specifically referred to in the judgment it is because the tribunal did not find them relevant to the decision or because another authority on the same point was available. Please see paragraph 45 of the judgment. The tribunal did take the case of Cox v Adecco Group UK & Ireland and ors [2021] ICR 1307 into account (paragraphs 45.6-7, 48, 71 and 82). 2.2. The tribunal does not believe its decision to be perverse or biased, and the claimant has provided no explanation as to why she believes it was. 2.3. The tribunal found that the claims were scandalous and vexatious and struck them out for this reason. It found in addition that the claimant had no reasonable prospects of success, and for this it took the claimant’s case at its highest (paragraphs 52, 71, 76, 81, 83). 2.4. The tribunal carefully considered and took into account the claimant’s and the claimant’s representative’s submissions. 2.5. The tribunal had regard to the overriding objective and found the claimant had failed to comply with it (paragraph 66). 2.6. The claimant refers to an application she made to strike out the respondent’s response or for a deposit order. It is not clear to the tribunal what correspondence the claimant is referring to. The claimant has entered into a great deal of correspondence with the tribunal. Despite instructions to the contrary, she has sent this to individual members of staff instead of, or sometimes as well as, the London Central Tribunal’s mailbox. This has made it difficult for the tribunal to manage the correspondence. The tribunal has a letter from the claimant dated 2 May 2024 in which she applies for a deposit order against the respondent in claim 2213167/2024. It is not clear if this was dealt with. However, neither that application, nor any other application for a strike out or deposit order against the respondents were raised before the tribunal at the hearing on 7 October 2024. 2.7. The reasons for the strike out were made clear in the judgment and were made in line with Rule 38 of the Employment Tribunal Procedure Rules 2024. Strike out was not a punitive measure but an objective one. 2.8. It is not clear what the claimant means when she refers to a violation of Article 10, but if this is a reference to the parts of the judgment which refer to the claimant copying in multiple third parties to emails, including some public authorities and figures, the judgment makes clear that it was the number of third parties copied in, the apparent lack of connection to the cases that those third parties had, and the high volume of emails which led the tribunal to conclude this was one aspect of proceedings being conducted unreasonably (paragraphs 15- 21 and 66)[3]The tribunal therefore considers that as it has adequately addressed the above issues in the judgment, there is no reasonable prospect of the original decision being varied or revoked.