Mrs S Messi v Alvarez and Marshal Europe LLP: 2214057/2023 and 2214044/2023

EMPLOYMENT TRIBUNALS

Case No 2214057/2023, 2214044/2023

Between

Mrs S MessiClaimant

Alvarez and Marshal Europe LLPRespondent

Before

Employment Judge Glennie

In person for claimant

Mr E Kemp (instructed by Counsel) for respondent

Date 13 December 2024

JUDGMENT

ON INTERIM RELIEF APPLICATION The judgment of the Tribunal is that the application for interim relief is refused.

REASONS

The Issues

[1]By her claim to the Tribunal presented on 23 August 2023 the Claimant made complaints of automatic unfair dismissal contrary to section 103A of the Employment Rights Act 1996 and detriment for making protected disclosures contrary to section 47B of the Act. She also included an application for interim relief.

[2]The legal principles applicable to the application for interim relief are as follows. Section 128 of the Employment Rights Act 1996 includes the following provision: (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)……..section 103A.. may apply to the tribunal for interim relief.

[3]Section 129 of the Act provides that: (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 103A...

[4]The Claimant’s application relies on her case as set out in the claim form in the following terms: “The principal reason for my dismissal is because I made protected disclosure to the ICO on 22.8.2023 for GDPR breach who shared my sensitive information without my consent. 2. Raised concerns of health and safety to the HSE on 22.8.2023 and the EHRC for failing to comply with the Equality Act 2010.”

[5]The Claimant did not make any reference to the HSE complaint in her written representations or in the course of the hearing. Mr Kemp observed that he took it that the Claimant was not relying on a disclosure to the HSE, to which the Claimant made no objection. I was not taken to any complaint to the HSE.

[6]In her written submissions the Claimant referred to a disclosure to the EHRC and in her oral submissions said that she had sent an email to the EHRC stating that the Respondent was not complying with the Equality Act. I was not provided with a copy of the email, and was not therefore in a position to form any view of its contents.

[7]The effect of section 129 is that, to succeed in an application for interim relief, a claimant must show that it is likely that the Tribunal will ultimately find in her favour on each of the elements necessary for a complaint of automatic unfair dismissal. In the context of the present case, these are:7.1 That as a matter of fact, she made the disclosure relied on.

7.2 That the disclosure satisfies each element of a qualifying disclosure under section 43B(1) of the Act.

7.3 That the disclosure satisfies each element of a protected disclosure under the relevant sections (in this case, potentially section 43F) of the Act.

7.4 That the disclosure was the sole or principal reason for the dismissal.

[8]The relevant elements of section 43B are as follows: (1) …..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: (b) That a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.

[9]Section 43F provides that: (1) A qualifying disclosure is made in accordance with this section if the worker – (a) Makes the disclosure to a person prescribed by an order made by the Secretary of State for the purposes of this section, and (b) Reasonably believes – (i) The relevant failure falls within any description of matters in respect of which that person is prescribed; and (ii) That the information disclosed, and any allegation contained in it, are substantially true.

[10]In Ministry of Justice v Sarfraz

[2011] IRLR 562

Underhill J confirmed that “likely” in section 129(1) should be understood as meaning a “pretty good chance” of success, which in turn means “not simply more likely than not – that is at least 51% - but connotes a significantly higher degree of likelihood.” In London City Airport Limited v Chacko

[2013] IRLR 610

Mr Recorder Luba QC said that what is required “is an expeditious summary assessment by the first instance employment judge as to how the matter looks to him on the material that he has. The statutory regime thus places emphasis on how the matter appears in the swiftly convened summary hearing at first instance which must of necessity involve a far less detailed scrutiny of the respective cases of each of the parties and their evidence than will be ultimately undertaken at the full hearing of the claim.”

[11]The Claimant’s case is that on 21 August 2023 she sent a fit note marked “private and confidential” to specific addresses within the Respondent’s organisation, and that one of the recipients forwarded this to someone who then shared it with other individuals, without the Claimant’s consent. On 22 August 2023 the Claimant sent an email to the Information Commisioner’s Office (ICO) at page 51 of the bundle provided by the Respondent which read: “I am raising concerns in good faith that Alvarez and Marshal breached their own data protection policy and breached confidentiality law when Samantha disclosed my sensitive information to HR WITHOUT my consent. I sent an email specifically requesting not to disclose my sensitive information without my consent and this was NOT acknowledged causing me anxiety, panic attacks and being nervous. See attached evidence [evidently including an email of 21 August 2023 attaching the fit note marked “not to disclose without my consent” and referring to reasonable adjustments and the fit note]…………”

[12]I have had to consider the application of the test of whether it is “likely” (in the sense explained above) that the Tribunal will find in favour of the Claimant on the various elements of her claim. I should emphasise that, where I express the view that a particular finding is not likely to be made, that does not mean that I regard it as impossible, or fanciful, but only that I do not regard it as likely.

[13]I have seen no evidence of a disclosure to the HSE or the EHRC. On the material before me, I do not find it likely that the Tribunal will conclude that such disclosures were made. Furthermore (as I have not seen such disclosures as may have been made) I cannot say that it is likely that a Tribunal will find that they contained qualifying disclosures.

[14]I have seen the email relied on as a disclosure to the ICO. Mr Kemp submitted that this was insufficiently specific as to the legal obligation involved. I concluded, contrary to this, that it was likely that a Tribunal would find that the reference to breaching confidentiality law and the description of what had happened gave a sufficient indication of the breach of legal obligation relied upon.

[15]I do not, however, consider it likely that a Tribunal will find that the Claimant believed that the disclosure was made in the public interest, or that any such belief was reasonable. To the extent that it might be said that there is, in a general sense, a public interest in organisations or individuals complying with their legal obligations, the “public interest” element in section 43B must mean more than that, otherwise it would always be satisfied and would be a redundant requirement. I do not consider that a Tribunal is likely to find that the Claimant believed that she made the disclosure in the public interest, as the sharing of information that she wished to be kept confidential was a matter of concern to her as an individual, and not obviously a matter of concern to the public. For essentially the same reason, I do not consider it likely that, if a Tribunal were to find that the Claimant had this belief, that it was reasonable for her to believe it.

[16]That finding means that the interim relief application fails, as I have found that it is not likely that the Tribunal will find in the Claimant’s favour on an essential element of the claim. I will, however, deal also with the other elements.

[17]Although Mr Kemp also submitted that it was not likely that the Claimant would be able to satisfy the requirements of section 43F, I found it likely that she would. So far as I can judge from the information available to me, the information contained in the email to the ICO was substantially true, meaning that it is likely that a Tribunal would find that the Claimant reasonably believed it to be true. I also consider that the matter complained of seems to fall within the responsibility of the ICO, such that it is likely that the Tribunal would find that the Claimant believed that it did, and that such a belief was reasonable.

[18]I do not, however, consider that it is likely that a Tribunal will find that the making of the disclosure was the sole or principal reason for the Claimant’s dismissal. It is true that the Claimant sent Ms Daly a copy of her email to the ICO, and that Ms Daly was one of those present when the decision was made to dismiss the Claimant. That said, I do not find it likely that a Tribunal will ultimately decide that the disclosure (whether it was a protected disclosure or not) was the sole or principal reason for the dismissal, for the following reasons:18.1 Beyond the point that Ms Daly knew about the disclosure, I have not seen anything that suggests that it was a factor in the decision to dismiss the Claimant.

18.2 The letter from Ms Tobin notifying the Claimant of her dismissal contains what I consider to be understandable reasons for that decision. I do not regard the absence of any reference to the disclosure as particularly significant: if it had been a factor in the decision, one would not expect the employer to say so. The letter, however, relies on the role being office based, and the Claimant initially seeking to work from home because of builders working there, and subsequently sending a fit note and a request to work from home as a reasonable adjustment. The letter continued that the conflicting explanations for the request to work from home indicated a lack of candour on the Claimant’s part. The letter also stated that the Claimant had failed to give details of her previous employers, as required by the Respondent.

18.3 I emphasise that I am not deciding that the Respondent would have been in any sense “right” to decide to dismiss the Claimant for these reasons, but I find it understandable that an employer might make such a decision. These are not the sort of stated reasons that lead me to think that there must have been something more to the reason for the decision than the Respondent said at the time.

18.4 The Claimant covertly recorded the meeting on 23 August, referred to in Ms Tobin’s letter, and following which the decision to dismiss her is said to have been made. The Claimant asked me to listen to this, and I played it through twice before reaching my decision. Ms Tobin began the meeting by saying that the Claimant was meant to start on Monday (21 August). The Claimant said she was not well, that she was seeking adjustments, in particular working from home. Ms Tobin said that part of the role was working from the office. The Claimant said that she did not understand why her fit note had been shared, and that she had been pressured to come to the meeting without a companion. The discussion then returned to adjustments and working from home. Although the Claimant made a single reference to the sharing of the fit note, none of this suggests that Ms Tobin, or the Respondent more generally, had the complaint to the ICO in mind at this time. The discussion reflected the Respondent’s stated concern about the issue over working from home.

18.5 The Claimant sent to the Tribunal 3 further documents in the course of the hearing. All were from 22 August 2023. One was an email from Ms Daly noting that the Claimant had not attended her induction and asking her to attend a Teams meeting the following day (as in fact happened). In my view, this did not add anything to the issue about the reason for the dismissal. The second (from earlier the same day) was an email from the Claimant to Ms Daly and others asking for an update on reasonable adjustments, also asking why additional background checks were being requested, and asserting “is in indication of retaliation and victimisation from raising…..” This could be taken as showing that the Claimant had in mind potential or actual retaliation or victimisation as a result of making disclosures, but it does not tell me anything about the Respondent’s reasons for dismissing her. The third was an email from the Claimant in reply to the first from Ms Daly which contained nothing of significance to the question of the Respondent’s reasons for dismissing the Claimant.

[19]Ultimately, I find that it is not impossible that, having heard all of the evidence, a Tribunal may find that the disclosures were at least the principal reason for the dismissal. I cannot, however, say that this is likely. There is no material which could lead me to that conclusion. This in itself is also sufficient to cause me to find that it is not likely that a Tribunal will find that the reason or principal reason for the dismissal was that the Claimant had made a protected disclosure.

[20]The application for interim relief is therefore refused.

[1]The Claimant's emailed request for written reasons dated 20 March 2024 in relation to my refusal of her application to amend her claim were referred by the Tribunal administration to Employment Judge Adkin on 16 May 2024.

[2]The case management order containing the refusal of the application to amend at the hearing on 11 March 2024 was dated 12 March 2024.

The hearing

[3]The Claimant had some difficulty with the video aspect of the CVP and switched to participating by audio on her telephone. The audio was clear and Respondent’s counsel and I were able to hear her. She was able to hear both myself and the representative for the Respondent.

[4]As to documentation I had an electronic bundle of documents prepared by the Respondent, which is 288 pages in length. I have also received a first witness statement of Alex Parkes. PHCM Order (NEW August 2020) 1 of 4 Application to amend

[5]As part of today’s case management hearing we considered the list of issues. Each party prepared their own list of issues.

[7]It became clear analysing those lists of issues that the Claimant was seeking to introduce some new allegations through her list of issues that were not contained within the claim form. I treated those new allegations in the list of issues that as an application to amend. When to hear application

[8]Dealing first with the principle of whether I should deal with the application to amend today.

[9]It was identified at the hearing that there is likely to be a further hearing, specifically a preliminary hearing to deal with the Respondent’s application for strike out and/or deposit of the claim.

[10]The Claimant suggested that perhaps this application to amend should be dealt with at that hearing. That suggestion was opposed by the Respondent.

[11]Ultimately I decided that I should deal with the application to amend today. There is a risk of the claim becoming complicated or difficult to understand. In my view what was going to be needed at the next hearing is a clear list of factual and legal issues, so that the Judge at that hearing can make sense of and deal with submissions from both parties as to whether or not to make a strike out order and/or whether to make a deposit order. For that reason went ahead and dealt with the application to amend.

[12]I should note in doing so, although the Claimant has suggested she is inexperienced I have taken account of the fact that she has been involved in quite a large number of claims in the Employment Tribunal before, appended to the grounds of resistance there are some 27 different litigated disputes some of which contain multiple claim numbers. It is clear that the Claimant has some experience with Employment Tribunal litigation. I do obviously bear in mind that she is not a lawyer and does not have the experience that I would expect a lawyer to have. I am satisfied however that the Claimant would understand that she needs to amend her claim if she is going to bring new allegations as she has done in the list of issues. There is no need under the Employment Tribunal (Constitution & Rules of Procedure) Regulations 2013, Schedule 1 ("the Rules") to list a separate application to deal with amendments to claims. It is regarded as a case management matter that is routinely dealt with early stage in litigation. I note the direction in the standard agenda document at box 2.2 “Any amendment should be resolved at the PH, not later.”

[13]For those reasons I am going to deal with the application to amend. PHCM Order (NEW August 2020) 2 of 4 Principles to be applied in dealing with application to amend

[14]I have considered this application to amend applying the tests set out in Selkent Bus Company Ltd (trading as Stagecoach Selkent) v Moore

[1996] IRLR 661

and the guidance in Galilee v Commissioner of Police of the Metropolis

[2018] ICR 634

as well as the Presidential Guidance on General Case Management (2018) Guidance Note 1: Amendment of the Claim and Response.

[15]When considering an application to amend, a tribunal must take into all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. The relevant circumstances include: 15.1. The nature of amendment; 15.2. The applicability of time limits; 15.3. The timing and manner of the application.

[16]In Vaughan v Modality Partnership

[2021] IRLR 97

HHJ James Tayler suggested that a relevant question is "what will be the real practical consequences of allowing or refusing the amendment": [paragraph 21]. Nature of amendment

[17]The nature of the amendment is not an application to add new heads of claims. The Claimant is not trying to introduce new heads of claim but she is trying to introduce new factual allegations that fall under the heads of claim that are already in the claim. Time limits

[18]Next I deal with applicability of time limits. It seems to me that is something that can be dealt with at a final hearing under the case of Galilee so I am not going to spend time considering that now although I do bear in mind that this preliminary hearing is March 2024 so there is some delay when these allegations are being brought forward, which I consider further below. Timing/manner of application

[19]Looking at the timing and the manner of the application at the moment we are still at the case management stage so it is not a situation where a final hearing date is going to be postponed or anything like which to some extent operates in the Claimant’s favour. Practical effect of amendment

[20]Turning to the final aspect the Vaughan v Modality Partnership question, what is the real practicable consequence. I do take account of Mr Kemp’s submission that this is a claim that is brought based on three day’s of employment. At the moment based on what is currently pleaded this is a relatively straightforward claim which might realistically be expected to be listed towards the end of 2024. If I allow all of PHCM Order (NEW August 2020) 3 of 4 the new elements that the Claimant is seeking to introduce it seems to me that inevitably there is going to be a longer hearing. There is going to be a longer delay because the Respondent is going to have to amend its response to provide further pleadings, the Respondent will be faced with further costs but there is likely to be a delay in listing this probably at a date in 2025.

[21]My judgment is that that such a delay is unsatisfactory and it does prejudice the Respondent because the Respondent is going to face further delay. They are going to have to pay more to defend the claim. Furthermore they would be faced with responding to fresh allegations made in March 2024 which relate back to the short period 21-23 August 2023 when the Claimant was employed, i.e. between 6- 7 months earlier. That delay is significant in the context of a three-month time limit prescribed by Parliament.

[22]The quality of the evidence that is going to be heard is going to be slightly less good inevitably and for those reasons I am not going to allow the application to amend.

[23]I apologise to the parties for the length of time it has taken to issue this reserved judgment. Having made the decision to reserve my judgment, I decided that I should familiarise myself with the Claimant’s litigation history more closely by reviewing some of the tribunal’s file. This has taken a considerable amount of time.

[24]I explain below, what I have done, but first record that here were two reasons why I felt this was necessary in the interests of justice.

[25]It is without doubt that the Claimant is a serial litigant, but this does not mean that she is automatically a vexatious litigant.

[26]I was conscious that the material provided to me by the Respondent was limited to the material available in the pubic domain. Inevitably this cannot tell the entire story of the litigation, although I note that several of the judgments contain a great deal of detail about procedural matters. I considered it was important to review the material available to me of which the Claimant would be aware, but which the Respondent would not have seen, so that I could critically evaluate the Respondent’s submissions based on the full picture rather than take a one-sided view based simply on what I was being told by the Respondent.

[27]The second reason was because in the last five years I have dealt with some aspects of the Claimant’s claims in my capacity as a salaried judge at London Central. I have heard one of her applications for interim relief and conducted case management hearings with her. I have also reviewed some of claims at vetting stage and dealt with some correspondence. This has given me a snapshot of the litigation being pursued by the Claimant. I decided it was unwise to rely on any impressions that such a snapshot may have given me, but that instead I should adopt a more rigorous approach.

The Law

[28]Aware that the Respondent only had access to the public judgments in the cases it relies upon, I have accessed the tribunal’s digital case files to learn more about those cases and those cases alone. The tribunal only introduced its digital case file system in 2021 and so not all of the background documents were available to me. In addition I do not have access to more recent cases in Scotland. Where they were, I have however, read and considered the pleadings (ET1s and ET3s) in all the claims cited by the Respondent, samples of the correspondence and all case management orders.

[29]I have not, however, not read any documents from any other cases involving the Claimant. According to the searches I undertook using the digital case management system, the Claimant has issued 70 separate claims. They appear to relate to around 30 different periods of employment or job applications that she has had in the last five years.

EVIDENCE

[30]The hearing was a preliminary hearing at which I was asked to make an assessment of the Claimant’s claims without hearing any evidence. I was, however, referred to evidential documents that were contained in the bundle and a witness statement prepared for one of the Respondent’s witnesses containing the evidence that person would give at any final hearing.

[31]I treated those documents with caution, bearing in mind that the evidence they contain had not been tested through cross examination at a substantive hearing and there may be other documents that I had not seen.

[32]A feature of the evidence was most of the interactions between the Claimant and the Respondent’s staff were in writing. Notes were taken of the interviews the Claimant attended, although the Claimant disputes the accuracy of these. The meeting at which the Claimant was dismissed was covertly recorded by her and a transcript was in the bundle.

[33]I have set out a summary of the factual background as I understand it,. I am consciously not making findings of facts where the facts were in dispute and to the extent that I may have wrongly assumed the facts were not in dispute, I do not intend this section to bind any future tribunal which hears actual evidence.

[34]The Claimant had not prepared any witness evidence dealing either with the substance of her claims against the Respondent or the allegation that the claim was vexatious based on her litigation history. RELEVANT FACTS Interviews and Pre-Employment Correspondence

RELEVANT FACTS

[35]The Claimant interviewed by the Respondent for a permanent role in its Accounts team in May and June 2023 (157 - 160). The role was offered to a different candidate only because the Claimant decided not to proceed with her application (161).

[36]The Claimant was interviewed again in August 2023 (164). This time the role was a fixed term role lasting for 8 weeks, but with the possibility of an extension.

[37]The Claimant says that the role was advertised as being fully remote. The location where the job should be carried out is not mentioned in the job description for the role (156), however the Claimant provided an undated advert (269) which does classify the role as remote.

[38]The Respondent says the Claimant raised the issue of the job being remote at the interview. The notes from the interviews say that the Claimant said that she thought the role was remote, but was told that she would need to work three days in the office, although it might be possible to reduce this to two days per week. (164).

[39]There is also an email from the date of the interview in which Cerina Daly, Accounts Payable Supervisor discusses the Claimant’s wish to limit the number of days in the office to 2 days per week. She receives approval from Alex Parkes, Finance Director to make an offer to the Claimant for “£35k, 2 days in the office on an initial 2 month contract. If made permanent this may have to revert to 3 days in the office.” (183)

Introduction

[40]The Claimant was issued with an offer letter dated 15 August 2024 that referred to her being offered the position of Accounts Clerk Payable “based at our London office” (166). The letter also informed her that the offer was subject to:• “references and background checks proving satisfactory and the production of documentary evdience of Academic and Professional Qualifications, where appropriate” and

• “documentary evidence that she has the right to work in the United Kingdom.”

[41]The contact of employment she was issued at the same time simply said “UK-London” against place of work (167 and 170). She signed and returned the contract on 15 August 2023. It confirms her salary as £35,000.

[42]On 15 August 2023 Ms Daly and the Claimant exchanged messages agreeing that the Claimant would start work at 10:45 am on Monday 21 August 2023. Ms Daly explained that the Claimant would need to be in the office on the Monday and the Tuesday. This was in order to have her induction. Ms Daly also confirmed that until she had received her IT equipment for home working, the Claimant would need to work in the office in the meantime. She noted that the Claimant would need two monitors and other equipment to work from home as it was too difficult to just work on a laptop screen. The Claimant appears to agree to this as she responds “ok” (185 – 187)

[43]On Friday 18 August 2023 the Claimant messaged Ms Daly to ask if she knew the timeframe for delivery of the equipment. She explained that she “was having some builders coming over the next 2 weeks and would like to plan as I will need to be home.” (188) Ms Daly replied to say that she would check with IT and let the Claimant know. She then added that she had been asked if the Claimant could arrive at 10 am on the Monday so that she could show her around and introduced her to the team (188). The Claiamnt replied saying “OK no problem see you at 10 am on Monday.” The exchange of messages finished with the two women wishing each other good weekends.

[44]On that same day, Friday 18 August 2023, the Claimant visited her GP and obtained a fit note covering the period from 17 August to 30 September 2023. The fit note says that the Claimant has “Lumbago with sciatica” and that she may be fit for work with altered hours and workplace adaptions (182). Monday 21 August 2023

[45]On Monday 21 August 2023, the Claimant messaged Ms Daly to ask if it would be possible to start later that day or preferable tomorrow due to an engineer visit that day. She said she had just got a call that he was coming later that morning and apologised for the short notice (193). I am unable to see the time the message was sent.

[46]Ms Daly replied to say that the Claimant would need to take the day as holiday and that she would let IT know regarding the induction. She asked the Claimant to arrive by 9.30 am the next day (191).

The Law

[47]At 12:20 that day, the Claimant sent an email addressed to a generic HR helpdesk email address (HRIS). I do not know where the Claimant got this email address or what she intended by sending the email to this address.

[48]The Claiamnt also copied Ms Daly into the email. In the subject line she said: “STRICTLY PRIVATE AND CONFIDENTIAL FOR ADDRESSES ONLY – NOT TO DISCLOSE WITHOUT MY CONSENT-Asking for reasonable adjustments to WFH (special equipment at home) – see GP fit note” In the body of the email she said the following: “Good morning I writing this email because I want to disclose that I have a disability and I suffered from a back impairment, lumbago with sciatica, and I am asking that you consider reasonable adjustments by allowing me to WHF for the duration of my contract or 1 day in the office. This will support me because I have special equipment at home and from medication I take also for my depression, panic attacks and anxiety it will help if I can start work slightly later (9.30am – 10 am).” (198) She attached the GP fit note dated 18 August 2023 referred to above.

[49]It is difficult to follow the email trail. It appears that Ms Daly replied to ask if she could forward the message to her manager Mr Parkes. The Claimant agreed that she could (197).

[50]Separately, a recipient of the HRIS email address, Samantha, replied to say that the email was not something that HRIS could help with and that it needed to be shared with HR. She asked if the Claimant objected to the email being shared with a named person in HR. The Claimant replied to say she did not really want the email to be shared with a lot of colleagues, but did not expressly say no to this question (197). She added a further reply asking who Mr Parkes was and if it was still ok for her to attend work the following day. The HRIS recipient replied to say she would be escalate the matter to the named contact in HR. The Claimant queried if she had done this without her consent.

[51]Ms Daly then replied to the Claimant at what appears to be nearly 6 o’clock in the evening. She asks the Claimant to arrive at 9:30 am the following day so that they can meet with their HR Business Partner “to better understand the adjustments that may be required for [her] to succeed in [her] role.” (195)

[52]The Claimant replied at 6:19 pm asking for the meeting take place by Teams as she was having anxiety attacks. She said this was because she had not consented to the email being shared with HR and now found herself being invited to a meeting. She also asks why if HR is best to deal with the matter, the email needed to be shared with Mr Parkes (195).

[53]Ms Daly replied to note that the Claimant had sent the original email to an HR helpdesk email address and that she had given permission to Mr Parkes seeing the email. She added that because the Claimant requested reasonable adjustments she and Mr Parkes needed to involve HR. She added that their priority was the Claimant’s wellbeing and that they would discuss the reasonable adjustments request at the meeting the following day.

[54]The Claimant replied to say that she had not given permission to share the email with HR and that wanted the meeting the next day to take place by Teams. Ms Daly did not reply.

[55]I could not find copies of email, either in the bundle or the additional material sent to me by the Claimant, which appeared to be emails from the Claimant making purported protected interest disclosures to the ICO, EHRC, HSE or internally sent on 21 August 2023. Tuesday 22 August 2023

[56]At 8:35 am the next day, 22 August 2023 the Claimant emailed the Information Commissioners Office (ICO) copying in the HRIS email address and Ms Daly. She forwarded the previous emails and said in her email: “I am raising concerns in good faith that [the Respondent] breached their own data protection policy and breached confidentiality law when Samantha disclosed my sensitive information to HR WITHOUT my consent. I sent an email specifically requesting not to disclose my sensitive information without my consent and this was NOT acknowledged causing me anxiety, panic attacks and being nervous. See attached evidence and I hope to her from you soon.” (200)

[57]The Claimant did not attend the Respondent’s offices that day. She messaged Ms Daly to say that she was not feeling well due to panic attack and anxiety and that she needed to see her GP as she had run out of medication. She also questioned the nature of the meeting with HR and asked if the meeting was formal or informal. (199) (209)

[58]Ms Daly replied to say that it was noted that she had failed to attend her induction that day and that the meeting with HR would take place by Teams the next day at 10 am. She did not answer the Claimant’s question but did confirm that present at the meeting would be her, Mr Parkes and HR (199).

[59]The Claimant emailed Ms Daly, Mr Parkes and Victoria Tobin, who was the relevant HR Business Partner at 4:41 pm to ask for an explanation about the nature of the meeting the next day including whether it was formal or informal. She said that if it was a formal meeting she would like to be accompanied by a trade union representative. She added that if the meting was to discuss reasonable adjustments she did not understand why HR needed to be present (204).

[60]Ms Tobin replied at shortly after 7pm to explain that she and Mr Parkes needed to attend the meeting as the Claimant had requested a change to her terms and conditions (204). The Claimant replied at nearly 8:30 pm challenging Ms Tobin’s explanation. Ms Tobin did not reply.

[61]At 10:42 pm that day, the Claimant sent the Respondent a subject access request (202).

[62]In the meantime, the Claimant had been corresponding with the third party the Respondent uses to conduct background checks on new starters, Hire Right. They sent her an automated message at 10 am on 22 August 2023 asking her to complete an on-line form so that the relevant background checks would be undertaken. The Claimant emailed their customer service desk to explain that she had completed the form. She received a reply thanking her for providing the information and saying that if any further information was need they would be in touch. The Claimant replied reiterating that she had provided all the information sought and add that being “bombarded” with the emails was causing her unnecessary stress and anxiety while she was off sick. She copied this reply to the HRIS email address and a further email address for the People Operations Team (206).

[63]Based on the evidence provided by the Claimant, the checks that had been completed were the checks necessary to establish that the Claimant had the right to work in the UK. A report confirming that Hire Right had established this can be found at page 255 of the bundle. There was no evidence int eh bundle that confirmed that the Claimant had provided information about her previous employment and/or the names of referees which the Respondent could contact.

[64]Other than the email referred to above sent to the ICO, I could not find copies of any others emails, either in the bundle or the additional material sent to me by the Claimant, which appeared to be emails from the Claimant making purported protected interest disclosures to the EHRC, HSE or raising a grievance sent on 22 August 2023.

[65]I note that the Respondent has conceded that the Claimant sent an email to it making a subject access request at 10:24 am. It also conceded that she sent an email at 14:04 to Ms Daly, it’s HRIS email address, its People Operations email address with the EHRC, HSE and the Respondent’s CEO copied in. I could not find either emails in the bundle. 23 August 2023

[66]The meeting took place with the Claimant on 23 August 2022 at 10 am by Teams. It lasted less than 15 minutes. A note of the discussions at the meeting made by the Respondent was included in the bundle (211 – 213) In addition, the Claimant covertly recorded the meeting. An initial transcript of the meeting was produced by the Claimant and then amended by Respondent. I note it was not agreed by the Claimant. I was not able to listen to the recording to verify this for myself (309 – 318 and 329 - 336). I note, however, that EJ Glennie did this at the interim relief hearing and summarised the contents in paragraph 18.4 of his judgment (41). The transcript is consistent with his summary.

[67]At the meeting the Claimant accepted that she had only raised the issue of reasonable adjustments on her first day of employment. She said that the adjustments that she required were to be able to work at home 100% of the time because she had special equipment at home. The requirement for this adjustment appeared to relate to her back condition. When she was informed that the respondent was able to provide specialist equipment in the office, she said that she took medication for depression which sometime meant she was tired in the mornings and needed to avoid travel. She also said she needed to take frequent breaks and intimated that this was easier to do at home.

[68]At 3:16 pm that day the Respondent sent the Claimant a letter terminating her employment that day with a payment in lieu of her entitlement to one week’s notice by email at (210 and 214 – 215).

[69]The letter began by thanking the Claimant for attending the meeting earlier that day, saying the purpose of the meeting had been to establish if she and the Respondent could work to find a constructive way forward together. It went on to say that the Respondent had concluded it was unable to do this for the reasons set out in the letter.

[70]The reason given was that the Claimant had not demonstrated the required cooperation and candour expected as an employee of the Respondent.

[71]This was said to be because the Claimant had been aware that the role was primarily office based with the option for homeworking and agreed to this. However she was now asking to work from home 100%. The letter noted that the Claimant had provided the Respondent with conflicting information regarding her request to work form him saying she had initially said this was in respect of builder engineer visits, but then saying it was due to a medical condition.

[72]The letter went on to say that due to the lack of candour the Claimant had demonstrated and the resulting disorganisation which meant that the Respondent could not easily rearrange matters in an eight week contract, it had decided her continuing employment was untenable.

[73]A final reason for the termination was said to be because the Claimant had field to complete the necessary background checks, specifically in respect of providing details of her former employers.

[74]As noted earlier, the Claimant presented her two claims to the employment tribunal on 23 August 2023. She also sent three emails to the tribunal which were copied to Ms Tobin, Payroll, HR, Mr Parkes, Ms Daly, Hire Right, Job Vite (who had helped with obtaining the job), the EHRC and the HSE. In the emails she added additional details about her claim as well as accusing the Respondent of being “vexatious, malicious and dishonest”, “fabricating” evidence and of “disgusting and shameful behaviour”. Additional Complaints

[75]One of the matters raised with me by the Respondent is that the Claimant has sent numerous emails to it, and the tribunal as well as the external bodies mentioned above. They did not provide me with a count, but I could see that the email correspondence was extensive.

[76]In addition, the Claimant has complained about the solicitors and barrister acting for eh Respondent. She has accused them of being vexatious and dishonest and deliberately omitting to include relevant evidence in the bundles prepared for the various hearings. She has written to them, copying in the Metropolitan Police, Solicitors Regulation Authority and the Bar Standards Board accusing them of making false statements in court and of being guilty of contempt of court (287, 301, 305 – 306, 343). She has also made a complaint of bias against Employment Judge Adkin (307). Miscellaneous Evidence

[77]The Respondent included documentary evidence in the bundle that Rosie Lintott, cited by the Claimant as a comparator, was paid the same salary as the Claimant (supplementary bundle page 174).in addition, on page 173 of the bundle it provided evidence that Sharon Dale, also cited as a evidential comparator by the Claimant, had been absent from work on long term sickness absence. That absence had commenced on 24 July 2023 with an initial fit note until 27 August 2023. Subsequently her absence extended into 2024 and was continuing as at 29 May 2024. Claimant’s Means

[78]The Claimant provided email evidence which appeared to show that she was in receipt of universal credit at the time of the hearing. Claimant’s Litigation History

[79]My review of the public judgments to which the respondent referred me and the associated digital case files has brought to the following to my attention. The case numbers for the cases I have reviewed are:• 4110316/2021

• 2204302/2021

• 2204154/2021

• 3321170/2021

• 3322788/2021

• 1404778/2021

• 2202400/2022

• 3314225/2021

• 3314273/2021

• 2200391/2023

• 2200243/2023

• 3204190/2022

• 2213167/2024

• 2212747/2023

• 2300226/2023.

[80]The Claimant has a pattern of pursing claims for whistleblowing following purported disclosures made by email to the EHRC, ICO and HSE. She appears to send emails to these organisations, often copied to the CEO, at times when disputes between her and her current employer arise.

[81]On occasions, according to the respondent’s versions of events, the emails are sent after the Claimant’s employment has been terminated for performance or conduct reasons. On other occasions, the emails are sent after the Claimant has been invited a meeting, but before the meeting takes place. Several of the judges that have reviewed the cases where this has happened have concluded that she has contrived to send the emails in anticipation of being dismissed.

[82]A feature of her claims is confusion about the dates when such emails take place. She is often ordered to provide further particulars of her purported disclosures and produce copies of the, but fails to do so.

[83]The complaints made to the ICO appear very often about the respondent having shared the Claimant’s own medical information without her consent. This is despite her having sent it to general HR email addresses.

[84]There is also a pattern of her making covert recordings of her colleagues.

[85]She also frequently accuses the respondent to her claim of fraud and dishonestly.

[86]There is also a pattern of the Claimant including complaints of pay disparity in her claim forms based on her race or sex which she does not particularise.

[87]The Claimant has told a number of respondents that she needs to work from home due to being disabled. She relies on a back condition and the need for special equipment. She says she needs to take frequent breaks and that her depression and anxiety mean that she takes medication which makes her tired in the mornings and unable to commute to an office.

[88]Many of her jobs have been jobs which she has done remotely, either because the roles were remote or because she has asked and been allowed to work from home. Even when permitted to work fully remotely she has claimed that the respondent is in breach of a duty to make reasonable adjustments because of failures to provide her with special equipment. This appears to have arisen where questions have been raised about her performance.

[89]In at least two cases, this one and one other, the Claimant has accepted a role based in part in an office, but then on her first day of employment produced a GP fit note asking for reasonable adjustments.

[90]None of the claims I reviewed led me to believe the Claimant had ever worked from a respondent’s office. One respondent, to a more recent claim, has analysed the Claimant’s dates of employment based on publicly available judgments and identified they overlap. That respondent says it employed the Claimant from 3 July 2023 to the end of March 2024. There is a direct overlap with this claim. In addition, it identified that the Claimant had taken time off as sick leave when she was in fact attending tribunal hearings in other cases.

[91]The Claimant also has a history of making last minute postponement requests for hearings. She often does not attend hearings, or where she does not attend for the full hearing.

[92]The review also reviews that the Claimant has a history of sending large volumes of emails to the respondents and to the tribunal. One respondent counted that in the lead up to a failed interim relief hearing, the Claimant sent its solicitors 32 emails in two days. She regularly challenges the respondent over the bundles for hearings, telling them she will prepare her own, but then doesn’t and instead sends the tribunal emails with numerous attachments including screen shots.

[93]None of her claims have been successful to date. She has been ordered to pay thousands of pounds by way of costs orders. THE LAW The Rules

[94]The tribunal’s power to strike out claims is found in Rule 37(1) of the Tribunal Rules. The power to make deposit orders is found in Rule 39.

[95]The relevant parts of Rule 37(1) for the purpose of this hearing say the following: “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 or the respondent (as the case may be) has been scandalous, unreasonable or vexatious.

[96]Rule 39 of the Tribunal Rules says: “(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party's ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.”

[97]The overriding objective in Rule 2 of the Tribunal Rules is also relevant at all times when considering applications of this nature. It says: “The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.” Vexatious claims and conduct – Rules 37(1)(a) and (1)(b)

[98]Vexatious conduct can apply both to the bringing of proceedings and the conduct of these proceedings.

[99]In an early employment case, ET Marler Ltd v Robertson

[1974] ICR 72

, where the Claimant was not held to have acted vexatiously, Sir Hugh Griffiths said: ''If an employee brings a hopeless claim not with any expectation of recovering compensation but out of spite to harass his employers or for some other improper motive, he acts vexatiously, and likewise abuses the procedure.”

[100]When considering whether a claimant is vexatious, motive is not the sole consideration. The impact of the claimant’s actions on the respondent to the claim can also be considered.

[101]The definition of a vexatious claim has also been considered in cases brought under section 42 of the Senior Courts Act 1981. This section empowers a court to limit the ability of a person to pursue litigation without obtain permission from a court. It applies where a person has habitually and persistently and without any reasonable ground instituted “vexatious” civil proceedings.

[102]In Attorney General v Barker

[2000] 1 FLR 759

, Lord Bingham CJ said: “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.” (764)

[103]In the case before him, he held that Mr Barker, the respondent had acted vexatiously. He noted that , the proceedings issued by him were flawed in various respects. Many showed no justiciable complaint, and there was an unnecessary multiplicity of proceedings in that many of the individual defendants could have been joined in a single action. None of the actions had proceeded to trial, and none in fact could have succeeded.

[104]Where it is not the Applying these rules involves three elements:• Identifying the conduct and determining whether it is scandalous, vexatious or unreasonable

• Considering whether the conduct means that a fair trial is rendered impossible

• Considering whether striking out is a proportionate response to the conduct. (Blockbuster Entertainment Ltd v James

[2006] IRLR 630

, CA; De Keyser Ltd v Wilson

[2001] IRLR 324

, EAT; Bolch v Chipman

[2004] IRLR 140

, EAT) Rule 37 (1)(a) – no reasonable prospects of success

[105]The courts have repeatedly warned of the dangers of striking out discrimination claims on the grounds that they lack prospects of success, particularly where “the central facts are in dispute” e.g. in Anyanwu v. South Bank Student Union

[2001] ICR 391

at [24] and [37] and Ezsias v. North Glamorgan NHS Trust

[2007] ICR 1126

at [29]. The same caution should also be applied where there are other grounds for a strike out.

[106]However, while exercise of the power to strike out should be sparing and cautious in discrimination claims, there is no blanket ban on such practice.

[107]The question of striking out discrimination claims was considered by the Court of Appeal in Ahir v. British Airways Plc

[2017] EWCA Civ 1392

, where Underhill LJ stated at [16]: “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. Whether the necessary test is met in a particular case depends on an exercise of judgment.” Rule 39 – Deposit Orders

[108]The purpose of a deposit order is to identify at an early stage claims with little prospect of success so as to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs if the claim failed. Their purpose is not to make it difficult to access justice or to effect a strikeout by another route (Hemdan v Ishmail and anor

2017 ICR 486

, EAT).

[109]Similar considerations apply to those required as in a strike out application under rule 37(1)(a) where a claim is said to have no prospects of success.

[110]When determining whether to make a deposit order, I am not restricted to a consideration of purely legal issues. I am entitled to have regard to the likelihood of the party being able to establish the facts essential to his case, and, in doing so, to reach a provisional view as to the credibility of the assertions being put forward (Van Rensburg v Royal Borough of Kingstonupon-Thames

UKEAT/0095/07

[111]The same caution should be exercised in discrimination claims where there are disputed facts as when considering applications for a strike out under rule 37 (Sharma v New College Nottingham EAT 0287/11 applying Anyanwu and anor v South Bank Student Union and anor

2001 ICR 391

, HL). The test of ‘little prospect of success’ under rule 39 is however plainly not as rigorous as the test of ‘no reasonable prospect’ under rule 37 and the consequences of a deposit order are not as severe as a strike out order. It therefore follows that a tribunal has a greater leeway when considering whether to order a deposit.

[112]An order should be for payment of an amount that the paying party is capable of paying within the period set (Hemdan v Ishmail

[2017] IRLR 228

, EAT) taking into account his or her net income and any savings. The employment tribunal must give its reasons for setting the deposit at a particular amount (Adams v Kingdom Services Group Ltd

UKEAT/0235/18

). ANALYSIS AND CONCLUSIONS Approach

[113]I began by considering the merits of each complaint individually and what my decision would have been had I not been aware of the Claimant’s litigation history. I then revisited my reasoning taking the Claimant’s litigation history into account. Finally, I considered the overall position. Purported Disclosures (List of Issues (1(a)(b) and (c))

[114]The Claimant relies on three purported disclosures, only one of which was contained in the bundle.

[115]Based on his analysis of the email sent to the ICO and the events that preceded it, EJ Glennie took the view at the interim relief hearing, without making any findings of fact, that the contents of the email were sufficient to amount to a disclosure of information tending to show a breach of a legal obligation. He held, however, that it was not likely (i.e. there was not a pretty good chance) that a tribunal, at a final hearing, would find that the Claimant genuinely believed that the disclosure was made in the public interest or that it was reasonable for her to believe this.

[116]I agree with his analysis. Absent my knowledge of the Claimant’s litigation history and pattern of claims, I would have been minded to strike this purported disclosure out. I accept that in order to understand the Claimant’s genuine belief, it would be necessary to hear evidence as to what was in her mind at the time of making the disclosure. However, whether such belief is reasonably held is an objective matter informed by the circumstances.

[117]My reasoning is reinforced when I take into account the Claimant’s litigation history. In my judgment, in common with her behaviour with other employers, she appears to have deliberately contrived to create difficulty for the Respondent by sending her medical certificate into a generic email address so that she could then complain to the ICO. This was because she anticipated the dispute between her and employer. In my judgment, this makes the complaints based on this disclosure vexatious.

[118]I take a similar view of her other purported disclosures despite not having seen them. This is based on the timing of when she says they were sent. The Respondent had not refused to undertake a risk assessment, make an occupational referral or make adjustments at the point when she says she made the disclosures. The Claimant’s own covert recording shows that at the meeting on 23 August 2023 the Respondent was actively exploring what the Claimant said she might needed by way of reasonable adjustments with her.

[119]On an objective analysis, ignoring the Claimant’s litigation history, it cannot have been reasonable, for her to believe that the Respondent was in breach of any legal obligation, on 21 or 22 August 2023. I would have struck the other two disclosures out for this reason alone.

[120]However, when the Claimant’s litigation history is taken into account, it is difficult not to each the conclusion that having been invited to a meeting to discuss reasonable adjustments, the Claimant sent the emails in order to create difficulty for the Respondent and contrive a potentially whistleblowing claim ahead of their meeting. In my judgment, this changes the complaint into one that simply lacks merit to one that is vexatious. Detriments and dismissal due to making purported protected disclosures

[121]Four detriments are identified in the list of issues as well as dismissal. In view of my decision about the purported disclosures, it is not strictly necessary to consider these separately but I have done so.

[122]Because the Claimant was an employee she would not be able to pursue a dismissal claim under section 47B. I would therefore strike out detriment 13(a) in the list of issues based on a pure legal analysis.

[123]Issue 13(b) concerned the alleged failure of the Respondent to deal with a grievance the Claimant said she sent them. There was no evidence in the bundle that C submitted a grievance on 21 or 22 August 2023, but as the bundle was incomplete I can not be sure that this did not exist. However, it is difficult to understand what the grievance could have been about if she sent it on 21 or 22 August 2023. Had I not decided that the Claimant could not rely on the disclosures and that her whistleblowing claim was contrived, I would have made a deposit order in order for this claim to be able to proceed. However, in my judgment, the grievance is simply another part of her contrived claim.

[124]Turning to the meeting and the Claimant’s right to be accompanied to it (issues 13 (c) and (d)), based on the Claimant’s covert recording of that meeting, it was not and was never intended to be a disciplinary meeting. It was intended to be. and was, a discussion about the Claimant’s request for reasonable adjustments. The Claimant was not therefore entitled to be accompanied to it by a trade union representative. I would have struck both these claims out for lacking merits.

[125]Finally, turning to the issue of the reason for the Claimant’s dismissal (issue 18), I would have struck this claim out on the basis that I did not consider the Claimant would have succeed in establishing she had made a qualifying disclosure for the reasons outlined above. Race Discrimination Claim (Issues 19-21)

[126]The Claimant’s complaint of race discrimination was that Rosie Lynott, who is white and did the same job as the Claimant was paid more than the Claimant because she was white. The Respondent produced, albeit untested, documentary evidence that this claim was entirely without merit.

[127]Had I been considering this claim without taking into account the Claimant’s litigation history, I would have made it subject to payment of a deposit. This was because the Claimant did not accept the evidence provided by the Respondent.

[128]Taking into account the Claimant’s litigation history however, I have decided this too is a vexatious claim. This type of claim has featured in the vast majority of the Claimant’s claims. The respondents involved have frequently defended the claims by saying that the Claimant is wrong about there being any such pay differentials. In my judgment, she simply adds this claim to the other claims, in the hope that it will lead somewhere where she has no basis for it. I believe that is what she has done here. She knew that Ms Lynott did the same job as her because she knew the names of the people in her team, but she did not know her pay rate. I consider the Claimant decided to take a chance there was difference because Ms Lynott was white and had been employed by the Respondent for several years. Reasonable Adjustments Claim (25 – 27)

[129]Had I not taken into account the Claimant’s litigation history, I would have allowed this complaint to proceed.

[130]Based on the Claimant’s own covert recording, the Respondent had been very clear with the Claimant that her job meant she was required to work in the office for at least 2 days per week. It was also able to provide specialist equipment in the office. This calls into question whether the Claimant would have been able to establish that allowing her to work from home would have been a reasonable step for the Respondent to have make in the circumstances. However, this would be a matter of evidence.

[131]However, based on my review of the Claimant’s litigation history, I have formed the view that this too is a vexatious claim. In common with at least one other occasion, the Claimant accepted a role that she knew required her to be office based in part, possibly while employed elsewhere, when she had no intention of working from that office. Overall Assessment

[132]In my judgment, all of the Claimant’s complaints made in this claim qualify as vexatious claims as defined by Lord Bingham, CJ. They have a basis in employment law, but very little to no merit. I do not know the Claimant’s motivation for pursing this claim or her many other claims, but whatever her intention may be, the effect of the litigation is to subject this and the other Respondents to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to her.

[133]In addition, I consider that her conduct of the proceedings is also vexatious. Her approach of sending numerous emails, failing to prepare properly for hearings and only attending them in part, together with her habit of making unfounded complaints about all involved in the litigation serves to exacerbates the inconvenience, harassment and expense to all involved, including the public purse. It also means it would be very difficult to have a fair hearing in this case, even if her claims had any merit. Employment Judge E Burns 13 December 2024 13 December 2024 ...................................................................... ...................................................................... For the Tribunals Office Appendix The Issues The issues the Tribunal will decide are set out below. Alleged qualifying disclosures – s.43B ERA

[1]C relies on the following alleged qualifying disclosures: a) a complaint that R had shared C’s sensitive information without her consent said to be a GDPR breach to the Information Commissioner’s Office by email on 21 August 2023 (“ICO email”); b) raising unspecified “concerns of health and safety” to the Health and Safety Executive on 21 August 2023 by email (“HSE email”); and c) raising unspecified complaints of failure to comply with the Equality Act 2010 to the Equality and Human Rights Commission on 21 August 2023 by email (“EHRC email”).

[2]It is accepted that C emailed the ICO on 22 August 2023 (08.53).

[3]It is accepted that C emailed the EHRC and the HSE on 22 August 2023 (14:04).

[4]Did any of the alleged disclosures constitute disclosure(s) of information by C?

[5]Did the alleged protected disclosures, in C’s reasonable belief, tend to show one or more of the following matters: a) in respect of the ICO email, that R had failed to comply with C’s data protection rights by sharing C’s sensitive information without her consent, a legal obligation to which R was subject under the Data Protection Act (s.43B(1)(b) ERA); b) in respect of the HSE email, that the health and safety of any individual had been endangered (s.43B(1)(d) ERA); and c) in respect of the EHRC email, that R had failed to comply with the Equality Act 2010, a legal obligation to which it was subject (s.43B(1)(b) ERA).

[6]If so, was such disclosure, in C’s reasonable belief, made in the public interest? ICO email – s.43F ERA

[7]It is admitted that the ICO is a person prescribed by the Public Interest (Prescribed Persons) Order 2014, SI 2014/2418.

[8]Did C reasonably believe that any relevant failure fell within compliance with the requirements of the legislation relating to data protection and to freedom of information?

[9]Did C believe that any information disclosed, and any allegation within the ICO email was substantially true? HSE and EHRC email – s.43G ERA

[10]Did C reasonably believe that any information disclosed, and any allegation contained in the EHRC email and the HSE email, was substantially true?

[11]Did C make the EHRC email and the HSE email for personal gain namely as part of an unreasonable campaign waged against R pre- and postdismissal and/or to contrive a claim against R?

[12]Was it in all the circumstances reasonable for C to make any disclosure? Detriment

[13]C relies upon the following alleged acts or deliberate failures: a) Her dismissal. b) A deliberate failure to investigate a “grievance” dated 21 August 2023. c) R calling C into a “disciplinary” meeting on 22 August 2023. d) R denying C the right to be accompanied at the meeting on 22 August 2023.

[14]Is C precluded from relying on her dismissal as a detriment pursuant to s.47B(2) ERA?

[15]Did the alleged acts or deliberate failures happen? If so, was C subjected to a detriment?

[17]If so, was C subjected to that detriment on the ground that she made a protected disclosure? Dismissal

[18]Was the reason or principal reason for C’s dismissal that C had made a protected disclosure? Direct Race Discrimination The Claimant identifies as black African.

[20]Was the Claimant paid less than a white comparator Rosie Lintott?

[21]If so whether that lower pay constituted less favourable treatment because of Claimant’s race? The Tribunal will consider whether there were material differences between the Claimant’s circumstances and those of her comparator. Disability

[22]What is the mental or physical impairment that the Claimant relies upon? She says her disability was due to a mental impairment of depression (depressive disorder) and panic attacks and physical impairment of a back impairment namely sciatica & lumbar.

[23]Was the Claimant a disabled person by reason of that mental or physical impairment?

[24]Did the Respondent have knowledge of the Claimant’s disability and/or substantial disadvantage. Failure to make reasonable adjustments

[25]The Claimant relies on the PCP (provision, criterion or practice) of the Respondent requiring her to work in the office.

[26]The Claimant alleges that the following caused her substantial disadvantage: a) Working in the office would cause anxiety; b) Working on the Respondent’s chair not her own would cause back pain.

[27]C alleges that R should have taken the following steps: a) referral to OH; b) carry out risk assessments; and c) allow Claimant to work from home.

[28]The first is that the Claimant, in her email, appeared to infer that my decision that the costs hearing should proceed and not be stayed points to bias on my part (see para 14 above). It was me that suggested staying this hearing pending the outcome of application for the RPO. The hearing has only proceeded because the Claimant objected in strong terms to the application being stayed. For her, therefore, to describe this as alarming is contradictory and not a valid consideration.

[29]The second is the point about the Respondent’s attendance at the hearing made by Mr Robertson and summarised at paragraph 13(e). I did indeed give the Respondent permission not to attend the hearing, but this does not suggest bias in its favour or against the Claimant. It is always likely to be to a party’s disadvantage if they do not attend a hearing. In many cases, a hearing can and does proceed in the relevant party‘s absence. The Claimant is fully aware of this as she has previously opted not to attend hearings and rely on written submissions herself. I consider that the decision was entirely neutral on my part and would be understood to be so by a fair-minded and informed observer.

[30]Turning to the substance of the recusal application, it is correct that in this case, I made a decision to strike the Claimant’s claims out for being vexatious having conducted a review of her litigation history available in the public domain. The Respondent’s costs application is based on that original finding.

[31]I consider Mr Roberton’s argument (summarised above at 13(b)), where he says that I should recuse myself because there is a danger that the outcome of the application for the threshold test for costs would appear predetermined is misconceived in the current context.

[32]The Claimant has said that the Judgment was based on assumptions with no evidence and suggests that what I say about her in it is extremely offensive and discriminating and insulting. She has not pointed to any particular passages in it to which she objects, however. Similarly although Mr Roberston said I used strong language it in, he has not pointed to any particular passages.

[33]I accept that, in reaching my decision on the strike out and the review I undertook that it is fair to say I have formed a view about the Claimant’s credibility and her approach to litigation. As such, if I were to be asked to make any substantive decisions in any new cases presented by the Claimant, as opposed to decisions on procedural matters or to this costs application, recusal may well be appropriate. I do not need to decide that question today, but I am acknowledging it because I consider it is only right to do so.

[34]The decision on costs, however, is different in my judgment. This decision is made as part of an ongoing case where there is value in having the same judge involved. It is also not a decision where I need to consider the Claimant’s credibility as she has not provided any witness evidence. In my judgment, the fair-minded and informed observer would not have concerns about me proceeding.

[35]Any judge who hears this costs application is bound to find that the claims are also vexatious for the purpose of rule 74(2)(a). That would be true whether it was me or a different judge. This is because a finding has already been made that is currently binding on the judge considering this matter. The relevant stage of the costs decision is necessarily predetermined, unless and until my earlier decision is successfully appealed.

[36]The rest of Mr Robertson’s arguments (summarised at 13 (a), (c) and (d)), however, raise legitimate concerns which deserve thorough consideration. I say this because there are three stages when considering a costs application. Stage one is the threshold test referred to above. Even where that is met, there are still two further stages before costs are ordered. Stage two requires the Tribunal to exercise its discretion and consider whether it is in the interests of justice to award costs in all the circumstances of the case. If it decides to do so, stage three is to determine the amount of the costs. It is the Claimant’s right to question whether I should be the judge who takes the decisions at the second and third stages

[37]With regard to the Claimant’s complaint about me to the JCIO, I consider the fair-minded and informed observer would recognise that it is right that judges do not automatically recuse themselves each time someone complains about them. This would effectively provide individuals with a mechanism to veto any judge to whom they took a disliking, by simply making a complaint about them.

[38]In this case, the complaint made was a valid one, but I note that it was not about my conduct or attitude towards the Claimant. It was simply in relation to delay in producing a written judgment and was not upheld. I consider the fair-minded and informed observer, aware of the judicial oath I have taken, would not conclude that the history of the complaint would effect my judgment in relation to the costs application.

[39]I have also made a small number of decisions in other cases involving the Claimant. In light of the number of claims she has made in recent years, I consider my involvement to be fairly insignificant with the exception of this case. Mr Roberston was unable to point to anything about my actions in the other cases that would cause the fair-minded and informed observer concerns. There were adverse, but legally correct findings and no strong language used. I consider the fair-minded and informed observer would take the view that I had approached the cases quite properly and would do the same again in relation to this application. COSTS

INTRODUCTION

[40]As noted above, the Respondent’s application is for costs. It is made in reliance on the findings in the Judgement and the amount sought is £20,000. The Respondent has provided a skeleton argument, bundle of authorities and a bundle for the hearing. The Respondent says that its total costs are £64,062 excluding VAT. There was evidence in the bundle in the form of a signed Schedule confirming this (187 – 188).

[41]Mr Roberston was not instructed for this part of the hearing and the Claimant did not attend. In the email she sent to the Tribunal on 20 August 2025 at 1:35 pm she set out an excellent precis of the legal tests that apply to costs applications with reference to case law. All that she said as to why costs should not be ordered in this case was: “[The application for costs] of £20,000 …..should be dismissed entirely as it is an abuse of process and both the respondents and their representatives are aware of my lack of means and that I am on UC in which is the bundle that was provided for EJ Glennie interim relief and for EJ Catherine (sic) Burns for the hearing on 31.5.2024.”

[42]The only evidence I have seen about universal credit are mobile phone screen shots from what appears to be an account in the Claimant’s name. The screen shots were included in the bundle for the costs hearing (206 – 207) and give the following figures: 23 February 2025

£884.43

23 January 2025

£0.00

23 December 2024

£0.00

23 November 2024

£80.17

23 October 2024

£1093.45

23 September 2024

£1071.45

23 August 2024

£785.78

23 July 2024

£914.16

23 June 2024

£722.90

23 May 2024

£333.00

23 April 2024

£0.00

[43]This gives an average payment of just over £500 per month between April 2024 and February 2025.

[44]I note that the basic amount for a single claimant for universal credit over the age of 25 in 2024/2025 was £393.74. The amount of universal credit paid varies depending on the circumstances of the person claiming including their housing arrangements, dependents and whether or not they are disabled. One of the eligibility criterion is savings of less than £16,000. If someone has savings of between £6,000 and £16,000 this reduces the amount that is paid.

[45]The Claimant attached a judgment to the email in the case 2200391/2023. This was a case in which a judge did not make a costs award against her following an application by the respondents made on 21 March 2023. The Judge had heard and dismissed the Claimant’s earlier application for interim relief. The costs application was made on the papers. I note that the Judge said that he had knew “practically nothing” about the Claimant’s means. The Judge’s reasons for not making the costs award were that he did not consider the threshold of unreasonableness was met.

[46]I have set out that Mr Roberston did take instructions from the Claimant during the hearing about her means and what he told me above.

THE LAW

[47]The employment tribunal rules enable a legally represented party in employment tribunal litigation to make an application for a cost order.

[48]When considering whether or not to award costs, the relevant tests (known as the “threshold tests”) which the Tribunal must apply are found in Rule 74 which says: “(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,”

[49]The Tribunal must consider an application in three stages:• I must first decide whether the relevant threshold test is met

• if I am satisfied the relevant threshold test has been met, I must then then decide whether or not to make a costs order

• If, I decided to make a costs order I should then decide the amount. Each case depends on the facts and circumstances of the individual case.

[50]A factor relevant to the exercise of our discretion may be whether there has been any warning of a risk of costs, but such a warning is not a prerequisite to the making of an order; nor is it a prerequisite that the receiving party must have put the paying party on notice of any application.

[51]Consideration of the Claimant’s means is a factor that arises at the second and third stage. Rule 82 says: “In deciding whether to make a costs order, preparation time order, or wasted costs order, and if so the amount of any such order, the Tribunal may have regard to the paying party’s (or, where a wasted costs order is made, the representative’s) ability to pay. “(emphasis added)

[52]I emphasise the word “may” because the Tribunal is permitted, but not required to have regard to the means of the party against whom the order is made. A tribunal can make a costs order even if the paying party has no ability to pay, provided means have been considered. The decision must indicate whether or not the paying party's means have been taken into account. (Benjamin v Interlacing Ribbon Ltd

UKEAT/0363/05

[53]Awards are intended to be compensatory, not punitive (Lodwick v Southwark London Borough Council

[2004] IRLR 554

). This means that where costs are claimed because a party has acted unreasonably in conducting a case, the costs awarded should be no more than is proportionate to the loss caused to the receiving party by the unreasonable conduct. In other words, the party is entitled to recover the cost of any extra work that had to be undertaken because of the unreasonable conduct, or the fees.

[54]Although the 'threshold tests' are the same whether a litigant is or is not professionally represented, the decision in AQ Ltd v Holden

[2012] IRLR 648

, EAT requires us to take the status of the litigant into account.

[55]The value of a costs order is determined by Rule 76. Where the amount sought is an amount not exceeding £20,000 there is no requirement for a detailed assessment of costs to be undertaken. Analysis and Conclusions

[56]This is a claim where I struck out the Claimant’s claims because I considered they were vexatious. I also considered that the Claimant’s conduct was vexatious. The threshold test under Rule 74(2)(a) is met in this case.

[57]Turning to the question as to whether I should make a costs order in this case, the Claimant has made only two arguments against me doing so. The first of those was her argument that I should not make the decision because of bias and the second was because of her means. I consider there is also another relevant factor which needs to be considered which is the fact that she is a litigant in person.

[58]I have dealt with why I can and should make this decision above and will say nothing further about it here.

[59]With regard to the Claimant’s means, she has not provided any reliable evidence in relation to these. Although she has said, through her representative, that she is currently unemployed and is in receipt of universal credit, I have seen no evidence confirming this. The evidence I have seen about her universal credit payments is not current and dates back to February 2025. She has not provided any information as to how her universal credit payments were calculated. Although it is possible for me to infer from the information provided that she must have less than £16,000 in savings, I am missing any reliable information about her outgoings, assets, actual level of savings or debts. I have not been told, for example, whether she is a home owner or not.

[60]Because the evidence from the Claimant about her means is unreliable I have decided that I cannot take it into account at the second stage of my decision making.

[61]I have taken into account that the Claimant is a litigant in person. In this regard she is not a typical litigant in person who lacks understanding of employment tribunal procedures. As a result of the large number of claims she has made, the Claimant understands that costs can be awarded and when. Indeed, as noted above, her written submission setting out the law on costs was accurate and an excellent summary.

[62]I noted in the concluding paragraphs of the Judgment that I did not know the Claimant’s motivation when pursuing claims. That remains the case following the costs hearing. She has not provided any explanation or evidence as to why it would not be just and equitable to order her to pay the Respondent’s costs. In the absence of such explanation or evidence, it is not for me to speculate.

[63]I have therefore decided to exercise my discretion and make an order that the Claimant pay the Respondent’s costs.

[64]The final stage is for me to decide how much the Claimant should be ordered to pay. The unreliability of the evidence in relation to the Claimant’s means also leads me to conclude that I should not take her means into account when determining the amount of the costs ordered.

[65]The Respondent is seeking £20,000. Given that the Respondent’s total costs are more than three times this amount, I am satisfied that I can proceed without needing to undertake any closer examination of the costs incurred. This is a case where the Respondent can legitimately claim the entirety of its costs as the claim should not have been brought at all. I am therefore ordering the Claimant to pay the Respondent £20,000.