D Harding v St George’s University Hospitals NHS Foundation Trust: 2301035/2021

EMPLOYMENT TRIBUNALS

Case No 2301035/2021, 2301827/2020

Between

D HardingClaimant

St George’s University Hospitals NHS Foundation TrustRespondent

Before

Employment Judge Cheetham

Date 6 April 2023

JUDGMENT

[1]The claim is struck out as having no reasonable prospects of success.

REASONS

[1]Following a hearing on 4 April 2023, this claim was struck out as having no reasonable prospects of success. The judgment was signed on 6 April 2023, but not sent out to the parties until 26 June 2023. Within 14 days of receipt of that judgment, the Claimant sought these written reasons.

[2]Before setting out the reasons that were given orally at the hearing, there are four points to make.(i) The Claimant has brought 2 claims: no. 2301827/2020 and no. 2301035/2021. It is the second claim that has been struck out. The first claim is listed for an 8 day hearing due to commence on 11 September and is unaffected by this Judgment. The two claims have not been consolidated.

(ii) By an email dated 7 July 2023, the Claimant raised a number of questions about the judgment and what she says she was told by the Judge and asked for these questions to be answered in the written reasons. The Tribunal cannot enter into correspondence about a judgment and these Reasons are simply a written record of the reasons given orally at the end of the hearing.

(iii) The Claimant has also applied separately for the hearing in the first claim to be adjourned, but that will be dealt with separately.

(iv) There is also an outstanding costs application by the Respondent in respect of this judgment, which will also be dealt with separately.

[3]By a letter dated 28 February 2022, the Tribunal notified the Claimant that it was considering striking out case no. 2301035/2021. The reason for this was stated as follows: “It has no reasonable prospect of success because you remain employed and your claim relates to dismissal and redundancy pay.”

[4]Findings of fact. The Claimant began working for the Respondent as an Employee Relations Adviser on a fixed term basis on 18 April 2017 and was subsequently made a permanent employee.

[5]The Respondent underwent a business restructuring exercise of its HR Service Delivery/Workforce teams in May 2020 and, in June 2020, it was confirmed to the Claimant that her role, which was then a band 7 Senior ER Adviser, would be disestablished and that the Respondent would seek alternative employment for her.

[6]Meanwhile, the Claimant had brought her first claim to the Tribunal on 6 May 2020, complaining of direct race discrimination and victimisation and a failure to make reasonable adjustments (i.e. claim no. 2301827/2020).

[7]The Claimant was offered a band 6 HR Advisor role in the new structure, which came with a year’s pay protection, after which time her salary would drop to a band 6. The Claimant was unhappy with this and raised an internal grievance. On 28 August 2020, she stated that the band 6 role was not what she considered to be suitable alternative employment and that she would “work to the new terms and conditions ‘under protest’”.

[8]There is no need to set out the discussions and correspondence that led, on 27 May 2021, to the Claimant being formally dismissal with effect from 22 July 2021 and offered immediate re-employment from 23 July 2021. She then continued to work for the Respondent up until September 2021, when she left to take up a role with another NHS organisation. Her continuous employment with the Respondent was therefore not broken.

[9]Meanwhile, the Claimant had presented her second claim to the Tribunal on 16 March 2021, which is a claim is for unfair dismissal and a redundancy payment.

[10]Submissions. Counsel for the Respondent, Ms Misra KC, pointed out that the Claimant was employed by the Respondent when she presented this second claim and was not under notice of dismissal at that time either. She submitted that neither a claim for unfair dismissal brought under Employment Rights Act 1996 s.94, nor a claim for a redundancy payment under s.135 is sustainable unless there has been a dismissal. .

[11]Ms Misra noted that in her ET1, the Claimant considered that her employment was continuing at the time of presentation of her second claim (see box 5.1), but nonetheless believed that she had been dismissed.

[12]For completeness, counsel submitted that Hogg v Dover College

[1990] ICR 39

is authority for the proposition that a direct dismissal for the purposes of s.95(1)(a) of the 1996 Act can occur where an employer unilaterally imposes different terms of employment on an employee which means that the old or existing contract is effectively withdrawn. That is a matter of fact and degree in every case, but it does not apply here, where:(i) the context is a business reorganisation and redundancy consultation;

(ii) the Respondent cannot be (and has not been) described as withdrawing the Claimant’s contract;

(iii) the Claimant was offered pay protection for a year; and

(iv) she continued to work in the band 6 role and remained in role up until the termination of her employment in September 2021 following her resignation.

[13]Accordingly, Ms Misra submitted, the claims for unfair dismissal (however put) and for a redundancy payment are fundamentally misconceived and ought to be struck out as having no reasonable prospects of success. She referred to the useful summary of the legal principles summarised by HHJ Tayler in Cox v Adecco Group

[2021] ICR 1307

(EAT).

[14]The Claimant submitted that her dismissal occurred before March 2021 and that it could arise – as in this case – where an employee is demoted or their work changed significantly. She said that, actually, her dismissal occurred in “real terms” in June 2020, when the status of her role was diminished and she provided a list of reasons why she felt she had been unfairly treated. However, in her submissions, she was unable refute the fundamental difficulty in her claim, which is that she was employed at the date she claimed unfair dismissal.

[15]The law. In Cox, the EAT summarised the guidance from a number of authorities as follows:(1) No-one gains by truly hopeless cases being pursued to a hearing;

(2) Strike out is not prohibited in discrimination or whistleblowing cases; but especial care must be taken in such cases as it is very rarely appropriate;

(3) If the question of whether a claim has reasonable prospect of success turns on factual issues that are disputed, it is highly unlikely that strike out will be appropriate;

(4) The Claimant's case must ordinarily be taken at its highest;

(5) It is necessary to consider, in reasonable detail, what the claims and issues are. Put bluntly, you can't decide whether a claim has reasonable prospects of success if you don't know what it is;

(6) This does not necessarily require the agreement of a formal list of issues, although that may assist greatly, but does require a fair assessment . of the claims and issues on the basis of the pleadings and any other documents in which the claimant seeks to set out the claim;

(7) In the case of a litigant in person, the claim should not be ascertained only by requiring the claimant to explain it while under the stresses of a hearing; reasonable care must be taken to read the pleadings (including additional information) and any key documents in which the claimant sets out the case. When pushed by a judge to explain the claim, a litigant in person may become like a rabbit in the headlights and fail to explain the case they have set out in writing;

(8) Respondents, particularly if legally represented, in accordance with their duties to assist the tribunal to comply with the overriding objective and not to take procedural advantage of litigants in person, should assist the tribunal to identify the documents in which the claim is set out, even if it may not be explicitly pleaded in a manner that would be expected of a lawyer;

(9) If the claim would have reasonable prospects of success had it been properly pleaded, consideration should be given to the possibility of an amendment, subject to the usual test of balancing the justice of permitting or refusing the amendment, taking account of the relevant circumstances.

[16]Conclusions. Without any doubt at all, as at the date when this claim was submitted to the Tribunal, the Claimant remained in employment. She had not been dismissed, either through redundancy or otherwise and she had not resigned.

[17]The Claimant refers to changes in the level of her work and to her demotion, but this is not a case where she can claim dismissal as a result of unilateral imposition of different terms, such that her old contract was withdrawn It was a business reorganisation and the Respondent did not withdraw her contract. Instead it offered her pay protection and she continued to work in the band 6 role. In the absence of any dismissal, her claim for unfair dismissal and a redundancy payment has no prospect of success and must be struck out.

[18]For the avoidance of doubt, this does not affect the first claim. The two claims have not been consolidated and, as this second claim will now be struck out, the issues in this second claim will not be heard in the hearing of case no. 2301827/2020.

[1]This Judgment has a lengthy history. Following a hearing on 4 April 2023, the claim was struck out as having no reasonable prospects of success. The Judgment was signed on 6 April 2023, but unfortunately not sent out to the parties until 26 June 2023. The Claimant sought written reasons, which were promulgated on 1 August 2023.

[2]Meanwhile, the Claimant’s second claim (2301827/2020) proceeded to a hearing and judgment was given on 19 September 2023 dismissing all of the complaints. The Claimant was also ordered to pay the Respondent’s costs in the sum of £20,000.

[3]After judgment was given in April 2023 in this claim, the Respondent made an application for its costs (28 April). On 9 May, the Claimant was asked to respond to that application in writing within 14 days. Although there was subsequently correspondence in which the Claimant said she had sent in her objections to the Tribunal, there was no record of those being received.

[4]There was further correspondence, which included the Claimant seeking postponement of the hearing of her second claim. She was given an extension of time for her response to the costs application and then a further and final extension of 14 days by letter of 14 October 2023.

[5]On 23 October 2023, the Claimant emailed the Tribunal in response to that Order and her objections are set out below. As throughout this claim, the Claimant sought to link her two claims and the bulk of that email criticised the striking out of this claim and addressed issues in her second claim.

[6]By the date of that email, the Claimant had brought an application for permission to appeal against the judgment in this claim, which was received by the Employment Appeal Tribunal on 20 October 2023 and subsequently notified to this Tribunal. She has also brought an application for permission to appeal against judgment in the second claim (filed on 16 November 2023). Those applications have yet to be considered.

[7]The initial intention was to wait to see the outcome of those applications before finalising this costs matter, but in the event it makes better sense to deal with it now. The application for costs

[8]EJ Wright set out at some considerable length the relevant rules and case law relating to costs application in the costs judgment given in case no. 2301827/2020 and the parties are referred to that very helpful summary, which is relied upon here.

[9]In summary, the three questions that need to be asked are:a. Is the relevant jurisdictional threshold in rule 76 met?

b. If so, should the ET exercise its discretion in favour of making a costs order?

c. If so, what sum of costs should the ET order?

[10]The Tribunal has reminded itself of its findings of fact and its conclusions in the reasoned judgment in the striking out application.

[11]The Respondent’s application for costs, which was copied to the Claimant, was accompanied by a schedule of costs. In terms, it echoed the submission made at the strike out hearing, which was that the Claimant had brought a claim for unfair dismissal when she had not been dismissed. This was an unreasonable thing to do, because the claim had no prospect of success. The Claimant had been warned of this.

[12]In response, the Claimant denied that she had acted unreasonably. She quoted correspondence between the parties, which linked her two claims and said that she was bewildered by the request that she should pay costs. It is probably fair to say that the Claimant simply does not understand why this claim was struck out and, to her mind, there has been a real injustice in failing to link this claim with her other claim, so that everything can be heard together. She also complains strongly that she was treated unfairly at the Preliminary Hearing. .

[13]However, the stark fact remains that she brought a claim for unfair dismissal that had no possible chance of succeeding, because at the time of that claim she had not been dismissed, nor was she under threat of dismissal. However one looks at it, that was not a reasonable thing to do. Therefore, the jurisdictional threshold in Rule 76 is met, because in bringing and pursuing that claim the Claimant acted unreasonably.

[14]Therefore, there is force in the Respondent’s application and the Tribunal has decided to exercise its discretion in the Respondent’s favour. The amount of costs sought is £8,518.85. The issue then becomes the Claimant’s ability to pay. The Tribunal is having regard to this, because it has in mind that the Claimant is already facing a sizeable costs order.

[15]The Claimant states that she is currently earning £65,262 per annum (on a fixed term contract to March 2024) and that she has no savings, but she has loans, overdraft and a mortgage totalling £180,201. As noted, she also has a costs order of £20,000 to meet.

[16]The Claimant has not provided details of her outgoings, so the Tribunal has done its best to work out what she is likely to be left with at the end of each month and the answer is very little, despite being on a relatively good salary, at least until March. Doing the best it can, the Tribunal therefore considers that a costs order in the sum of £1,000 would be appropriate in all the circumstances.