Ms C Poku v NHS Croydon CCG and others: 2301411/2018
EMPLOYMENT TRIBUNALS
Case No 2301411/2018
Between
Ms C PokuClaimantNHS Croydon CCG and othersRespondent
Before
Employment Judge Truscott QCIn person for claimantMr C Kennedy (instructed by Counsel) for respondentDate 4 December 2019
REASONS
[1]This Preliminary Hearing was listed to determine the following:a. The respondents’ application for strike out of the claimant’s claims or deposit orders;b. The claimant’s complaints about the respondent’s behaviour;c. To agree a list of issues and make appropriate case management orders for the final hearing which has been listed for 5 days commencing 1 April 2019.[2]The claimant confirmed that she had no current complaints about the behaviour of the respondents.[3]Case management orders are issued in a separate document of the same date.[4]The respondents’ Counsel produced a table of the complaints made by the claimant with categorisations derived from the ET1. The claimant produced a list of issues which was a long list of facts under different discrimination headings.[5]The table: Alleg Type of Discrimination alleged by the ation Claimant Num Date of Allegation summary ber allegatio (as set out in the ET1) from n the Disab Harass Victimi Race Sex Age ET1 ility ment sation 22.12.17 AOG made a racial remark regarding Christmas presents, in reply to my saying I 1. give jumpers to the X poor on Christmas she said ‘From the start you would have had low expectations’. 18.01.18 RC said that due to immigrants in Croydon 2. X taking advantage was the reasons for putting strains on the system. AOG said that Caucasian middleclass people ‘knew how to use the service’ and ‘did not use it all'. RC and AOG made reference to ethnic minorities abusing the service. RC and AG would occasionally make sexist and racist remarks concerning myself, staff members and Croydon people. 14.12.17 RC made a sexist discriminating remark against pregnant women and said that it was bad for working 3. X women to get pregnant due to it affecting the amount of time they could spend at the work place. 12.12.17 RC sent an email requesting AOG, my predecessor and myself to attend 4. X X different meetings. RC said ‘please’ to everyone apart from me. 22.12.17 I was asked to produce a letter response to complaints. Croydon CCG has a complaint response team that are responsible for 5. X X X responding to complaints. Predecessor or any other person in the same role and banding did not do. 04.01.18 AOG and RC constantly made sexist 6. remarks concerning X men. RC and AOG said that my predecessor was a 'Useless Guy', 'Pointless man' and 'Didn't do any work'. RC called a male member of staff, Robert Rose, ‘Useless’ because he could not follow the morning call layout. RC does not criticise female staffs when they do not follow the same layout. 10.01.18 RC said that an external colleague,[7]Geraldine Rodgers, X X was an old woman trying to make profit. 10.01.18 AOG was constantly 12.01.18 aggressive when delegating tasks to me. On 10.01.18, AOG hit my back and shoulders because she said I delayed sending an email. This caused post-traumatic stress and physical pain. On 12.01.18, I had a meeting with Stephen[8]Warren after working X X X X hours to discuss the discrimination and assault by AOG and expressed to him my concerns and nothing was being done concerning the discrimination. I was forced to remain in a hostile environment which would have been different if both respondents were male. 15.01.18 RC hit my Hand and 9. my X X X X pushed it off mouse and shouted ‘I told you to send the email to Rachel Souster and you (swear words) delayed.' She then moved closer to my face, I thought she was going to punch me and gave me an offensive look, looked around and threatened ‘This is not the place to do it, I will deal with you later'. I suffered arm and wrist pain for a couple of weeks and posttraumatic stress disorder. RC knew that due to my dysphasia, I would take longer to respond to situations. The assault affected my work and personal life and caused irreversible mental damage 15.01.18 I remained seated at my desk for long period of hours. I became hypervigilant and felt as if I was going to be attacked by every person. Since 10. being at Croydon CCG, I have suffered from insomnia, flashbacks, nightmares, heart Conditions and isolation. 15.02.18 AOG gave me 22.02.18 multiple tasks due in short amount of time 11. and did not take into X X X X X account my disability. Furthermore, the workload increased when I made a grievance. 16.01.18 RC shouted about - giving her feedback on 18.01.18 the morning call. This 12. caused me distress X and embarrassment since it is an open office. As part of my role I was required to produce minutes and summaries. Due to my disability, I found it increasingly difficult to comply with the requirements because[13]I was not given any X X support or technology. The CCG did not make adjustment to my computer and equipment to enable me to produce work efficiently. No support was given. 16.01.18 RC arranged a 1:1 meeting with Alison O'Grady and myself in a closed room and 14. they shouted and X insulting me, and criticised my speech. This was disability 16.01.18 RC was not my manager, she would control and delegate task to me, all in the form of discrimination and bullying.[15]RC had arranged a 1:1 X X X meeting with me and AOG to take place in a closed room. During the meeting, Rachael Colley said to me 'Stephen [warren] can tell me to remove myself but I won't, I will be on the side lines watching like a hawk'. RC said she was 'not happy' with me and I would find myself being ‘called into HR meeting to downgrade my salary'. She then proceeded to tell me that I wouldn't be attending the meeting with Anne Jackson because I am 'clueless' and 'won't be able to answer anything'. AOG agreed with RC and said that 'I am not the right person to represent the organization' and 'you can't even express yourself or explain anything'. My predecessor, who is an older Caucasian male, could meet anyone including Anne Jackson. RC and AOG were isolating me into closed rooms to intimidate, bully me to prevent me from making a grievance. 16.01.18 RC and AOG would exclude me from 16. conversations, Lunch X X X and would not greet me in the morning. 17.01.18 Meeting with AOG who aggressively shouted at me concerning arranging to meet[17]X X X Anne Jackson. Also, when I expressed that this is intimidation, her response was 'she can force me to do anything because she is a manager’ and if I don't do it, I would find Myself in a HR meeting and fired. 04.01.18 When I spoke to AOG 10.01.18 she would respond 16.01.18 with ‘WHAT!'. 17.01.18 Whereas, when another older or Caucasian colleague spoke to Alison[18]O'Grady she did not X X X respond with ‘What!'. This is victimization since after the 1:1 meeting on 16th January 2018, AOG would be volatile and aggressive with me 22.01.18 AOG called me into a closed room to falsely accuse me of sending[19]X X X out CUCA alliance document to Anne Jackson. 24.01.18 I spoke to Director Stephen Warren concerning AOG and RC harassing and discriminating against me. Stephen Warren[20]X X X X X told me 'If you are really getting bullied then prove it’ and the discrimination is in the 'past’ so’ I should just move on'. 01.02.18 When I complained about the harassment by AOG, she would 21. burden me with large X amount of work and treated me like a personal assistant. 01.02.18 RC sent an email that she was going to be on[22]X annual leave and needed someone with ‘some UC knowledge to be around'. I was writing in my bullying diary on the computer and Rachael Colley, whose desk is next to mine, was 23. staring at my screen X and saw I was keeping a record of the discrimination. RC and AOG gave me a rude look. 08.02.18 It was 17:00 and I was getting ready to leave the office. AOG told me that since I arrived[24]X X X 10 minutes late in the morning, I would be staying back for 30 minutes. 05.01.18 I had nervous 05.02.18 breakdowns and cried[25]X 14.02.18 due the harassment 13.03.18 and discrimination. 16.01.18 After 16.01.18 the 1:1 meeting took place in a closed room so that AOG and RC could26. shout, discriminate and intimidate me and there were no witnesses. 06.02.18 AOG and RC said I 08.02.18 cannot carry over my annual leave to the27. following year X X X whereas other staff could. No reasons provided. 13.02.18 Meeting with Stephen Warren about the grievance, following[28]X which AOG refused to give me access to my desk and computer. 13.02.18 I told Stephen Warren that since speaking out[29]X about the grievances, AOG and RC had become more aggressive and discriminating. 15.01.18 I suffered from severe 16.01.18 night mares and 01.02.18 flashbacks. I couldn’t 21.02.18 sleep and only ate 30. 08.03.18 sweets for lunch to 14.03.18 obtain energy. 15.02.18 AOG bent over me and aggressively told me to instantly respond to an[31]X X email whilst I was having a conversation with a colleague. 19.02.18 AOG organized - multiple 1:1 meeting in 08.03.18 a closed room to shout and verbally abuse[32]X me. This is victimization since the 1:1 increased when I made the grievance. 21.02.18 I went on a break, following which AOG aggressively approached me at my desk and forced me to walk outside the office and shouted at me.[33]X This was after I reported my grievance. I rarely went for lunch compared to AOG and RC who went for a one-hour lunch. 21.02.18 Due to my dyslexia and dysphasia, I would go to close rooms to work and take notes. AOG 34. threatened t I had to X stay at my desk all the time without getting up. AOG discriminated against my disability. When I couldn’t recall some information, AOG sarcastically said ‘Do you have brain issues. 22.02.18 AOG made various discriminatory statements: 1. Since I am younger, I should not be on an 8A band since another Caucasian is on grade 6 band and she writes better minutes. Alison O'Grady made me feel bad about my disability. This is disability and race discrimination since she compared me to a Caucasian colleague.[35]X X X X 2. AOG said that since she was 37 when she was on a band 8A and I shouldn’t be on. 3. AOG used unprofessional language during the conversation such as ‘Pissed off. 4. AOG repeatedly called me an 'Adolescent' and said 'look at you, your face, and posture’. This is age and racial 22.02.18 AOG said that my eyes light up when I see 36. another ethnic X colleague, Josephine Shying. 22.02.18 AOG admitted that RC was 'Pretty Harsh', 'Horrible' and 'Shouted' at me. AOG said that she was 37. angry that I had made X a grievance concerning the bullying and discrimination and had not included RC. Only Caucasian colleagues are promoted whereas ethnic minorities are ignored. RC after being at Croydon CCG for 6 months was promoted from a line[38]X X X manager to an Associate director. In comparison, two ethnic colleagues who have been at Croydon CCG as managers for two years have not been promoted. 28.02.18 AOG said that Clinical lead Angelo Fernandez meeting was 'boring and waste of time'. RC said ‘Nothing Angelo Fernandez say is39. interesting. You X X X X X shouldn't be attending those meeting. Not someone on your level. You should leave it to the likes' and motioned her head towards me. 01.03.18 I was told by AOG that40. since I had worked X X X from home on due to the snow, it would be coming out from my annual leave. Other colleagues worked from home. 01.03.18 I approached HR Bunmi Brookman to discussed 1:1 with Alison O'Grady and Myself. Bunmi Brookman pushed and hit me. She threatened41. that I should move X X X X X from her desk since I had ‘complained to her manager about her'. As a result of the assault, I had shoulder pain in my right side for a month. 03.03.18 I contacted ACAS to discuss mediation, early reconciliation42. and asked advice about assault, bulling and harassment in work place. Croydon CCG did not adhere to[43]ACAS X Discrimination/grievan ce procedure. 08.03.18 Meeting with head of HR, Tim Widdowson who said he was aware of the grievance. Tim Widdowson said my only option would be to talk to AOG and Bunmi[44]Brookman. Tim X Widdowson admitted said Bunmi Brookman was angry at the moment that was the reason she had pushed me, but I shouldn't make a grievance since it wouldn't 'go anywhere'. CCG dismissed my concerns and discriminated against[45]X X X X X me because of my grievance. 08.03.18 Tim Widdowson said even if RC and AOG were harassing, abusing and discriminating against me, the people involved are too 'powerful' to be fired 46. and nothing would X change. Also, if I put in a grievance it would impede promotion or me staying at the CCG since 'the directors' would dislike me and I would be forced to leave. 13.03.18 Spoke to ACAS about the assaults and[47]X X bullying. 14.03.18 AOG shouted at me when I asked her a question. As a result of the discrimination and constant bullying by AOG, it caused my bladder to become weaker, affected Heart conditions, coughing up blood, and 48. depression. X X X X X X I contacted ACAS and as a result I have been discriminated and victimization by Croydon CCG. It was a hostile environment. Colleagues at work were concerned about my health and asking why I was not eating. I Croydon CCG encourage the discrimination; due to having no diversity at higher positions, Croydon CCG did not want to deal with the discrimination. As a result of being discriminated, harassed and assaulted, it worsened my disability, caused new illnesses and has caused permanent physical and mental injuries. Submissions24. The claimant explained that as a young, black woman with a disability she had categorised the complaints according to her protected characteristics. In relation to the deposit order request, she said she had no capital or income and relied on the generosity of friends.25. The respondent submitted that in the light of the fraud perpetrated by the claimant on gaining employment all of her claims should be struck out. In addition, Counsel made submissions on each allegation set out in the table. Relevant Legal Framework Requirement of fair notice of a claim26. It is trite to say that parties should know, in advance, reasonable details of the nature of the complaints that each side is going to make at the hearing, see White v. University of Manchester [1976] ICR 419 EAT. STRIKING OUT27. An employment judge has power under Rule 37(1)(a), at any stage of the proceedings, either on its own initiative or on the application of a party, to strike out all or part of a claim or response on the ground that it has no reasonable prospect of success. In Hack v, St Christopher’s Fellowship [2016] ICR 411 EAT, the then President of the Employment Appeal Tribunal said, at paragraph 54: Rule 37 of the Employment Tribunal Rules 2013 provides materially:- “(i) At any stage in 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) Where it is scandalous or vexatious or has no reasonable prospect of success…”[55]The words are “no reasonable prospect”. Some prospect may exist, but be insufficient. The standard is a high one. As Lady Smith explained in Balls v Downham Market High School and College [2011] IRLR 217, EAT (paragraph 6): “The Tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success. I stress the words “no” because it shows the test is not whether the Claimant’s claim is likely to fail nor is it a matter of asking whether it is possible that his claim will fail. Nor is it a test which can be satisfied by considering what is put forward by the Respondent either in the ET3 or in the submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. It is, in short, a high test. There must be no reasonable prospects…”[56]In Romanowska v. Aspirations Care Limited [2014] (UKEAT/015/14) the Appeal Tribunal expressed the view that where the reason for dismissal was the central dispute between the parties, it would be very rare indeed for such a dispute to be resolved without hearing from the parties who actually made the decision. It did not however exclude the possibility entirely. 28. The EAT has held that the striking out process requires a two-stage test in HM Prison Service v. Dolby [2003] IRLR 694 EAT, at para 15. The first stage involves a finding that one of the specified grounds for striking out has been established; and, if it has, the second stage requires the tribunal to decide as a matter of discretion whether to strike out the claim, order it to be amended or order a deposit to be paid. See also Hassan v. Tesco Stores UKEAT/0098/19/BA at paragraph 17 the EAT observed: “There is absolutely nothing in the Judgment to indicate that the Employment Judge paused, having reached the conclusion that these claims had no reasonable prospect of success, to consider how to exercise his discretion. The way in which r 37 is framed is permissive. It allows an Employment Judge to strike out a claim where one of the five grounds are established, but it does not require him or her to do so. That is why in the case of Dolby the test for striking out under the Employment Appeal Tribunal Rules 1993 was interpreted as requiring a two stage approach.” . 29. It has been held that the power to strike out a claim on the ground that it has no reasonable prospect of success should only be exercised in rare circumstances (Tayside Public Transport Co Ltd (t/a Travel Dundee) v. Reilly [2012] IRLR 755, at para 30). More specifically, cases should not, as a general principle, be struck out on this ground when the central facts are in dispute. 30. In Mechkarov v. Citibank N A UKEAT/0041/16, the EAT set out the approach to be followed including:-(i) Ordinarily, the Claimant’s case should be taken at its highest.(ii) Strike out is available in the clearest cases – where it is plain and obvious.(iii) Strike out is available if the Claimant’s case is conclusively disproved or is totally and inexplicably inconsistent with undisputed contemporaneous documents. 31. As a general principle, discrimination cases should not be struck out except in the very clearest circumstances, Anyanwu v. South Bank Students’ Union [2001] IRLR 305 HL. Similar views were expressed in Chandhok v. Tirkey [2015] IRLR 195, EAT, where Langstaff J reiterated (at paras 19–20) that the cases in which a discrimination claim could be struck out before the full facts had been established are rare; for example, where there is a time bar to jurisdiction, where there is no more than an assertion of a difference of treatment and a difference of protected characteristic, or where claims had been brought so repetitively concerning the same essential circumstances that a further claim would be an abuse. Such examples are the exception, however, and the general rule remains that the exercise of the discretion to strike out a claim should be ‘sparing and cautious’. 32. In Ahir v. British Airways plc [2017] EWCA Civ 1392 CA, Lord Justice Underhill reviewed the authorities in discrimination and similar cases and held at paragraph 18, that: “Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context.” DEPOSIT ORDERS 33. A deposit order can be made if the specific allegation or argument has little reasonable prospect of success. In Hemdan v. Ishmail [2017] IRLR 228, Simler J, pointed out that the purpose of a deposit order ‘is to identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs ultimately if the claim fails’ (para 10), she stated that the purpose ‘is emphatically not to make it difficult to access justice or to effect a strike out through the back door’ (para 11). 34. As a deposit order is linked to the merits of specific allegations or arguments, rather than to the merits of the claim or response as a whole, it is possible for a number of such orders to be made against a Claimant or respondent in the same case. 35. When deciding on the amount of the deposit, a Tribunal must make sure that the order ‘does not operate to restrict disproportionately the fair trial rights of the paying party or to impair access to justice’ according to Mrs Justice Simler at paragraph 16 of Hemdan. It is important that the order is one that is capable of being complied with, and that a party without the means or ability to pay should not be ordered to pay a sum that he or she is unlikely to be able to raise (para 17). CONCLUSION 36. The Tribunal noted that the ET 1 submitted by the claimant was lengthy and detailed. For this hearing, the claimant provided a list of issues which was a lengthy list of factual assertions under a number of discrimination headings. The Tribunal was unable to ascertain the extent to which the list repeated or added to the allegations in the ET1. The Tribunal proceeded on the basis of the ET1. 37. The Tribunal did not accept the respondents’ submission that all the claims should be struck out because of the fraud perpetrated by the claimant in gaining employment with them. 38. The claimant’s rationale for her claims as she explained in submissions is not sustainable in law. Simply because she has certain protected characteristics is insufficient to sustain claims of discrimination against her on the basis of these characteristics. The Tribunal considered how the claimant might establish a prima facie case generally, for each characteristic and in relation to the specific allegations. The Tribunal considered the claimant’s case on its own merits and took it at its highest. Whilst the Tribunal should have been content to accept Counsel’s assurance that the table accurately reflected the ET1, the Tribunal checked the ET1 and the table to confirm the position and then proceeded on the basis of the table. This table is incorporated in this judgment although the right hand column for comparators has been removed. No comparators were identified by the claimant in this column but some comparison can be identified from the narrative in column 2. 39. Overall the Tribunal concluded that taking into account the short period of employment and the plethora of allegations made by the claimant with no rationale for making the claims other than her own characteristics, the claimant would not succeed in her claims of sex and age discrimination, harassment and victimisation based on these characteristics. The fact that she did not name comparators does not mean that her claim cannot succeed but the failure to address how she would establish her claims under each of the protected characteristics was an insurmountable problem. 40. In relation to disability, there was a case management hearing conducted by EJ Nash on 14 August 2018 which concerned itself with, among other things, obtaining the information from the claimant necessary to establish disability and formulate reasonable adjustments. No information has been provided by the claimant. The Tribunal noted that there was no mention of reasonable adjustments for disability in the list of issues document she provided, simply direct discrimination. The claimant accepted at the hearing that her claims so far as based on disability could not continue and should be dismissed. The Tribunal was not entirely confident that the claimant understood the implication of what she was saying so the Tribunal itself examined the disability claims. The Tribunal concluded that the claimant would be unable to establish that she was disabled and consequently her claims would fail. 41. The Tribunal then took on board the authoritative exhortation about not striking out discrimination cases and sought not to be too pedantic about the pleadings when weighing up the appropriate course of action as the claimant was a party litigant. The Tribunal exercised its discretion considering the claims in the round and also individually. The Tribunal concluded that the claims based on sex, age and disability, harassment, and certain inspecific allegations as detailed in the judgment had no reasonable prospects of succeeding and should be struck out. 42. The Tribunal considered each claim in the table as follows. 43. Allegation 1 is a comment which is described as a racial remark made to the claimant, whether it was made and whether it was so directed, is a matter for evidence. 44. Allegation 2 narrates general racist comment. Only the part of the allegation “RC and AG would occasionally make sexist and racist remarks concerning myself, staff members and Croydon people.” includes the claimant and although referable to 18 January 2018 is not specific as to date or content. The claim is struck out. 45. Allegation 3, is a general comment alleged to have been made against pregnant women. The claimant was not a pregnant woman. The claim is struck out. 46. Allegation 4 is that RC said please to everyone except the claimant. This claim, based on race and age is struck out as it lacks any substance. 47. Allegation 5 identifies a comparator and differential treatment. The claim based on race should proceed to a hearing, the claim based on sex and age is struck out as the claimant has no prospect that the reason for the behaviour was sex or age. 48. Allegation 6 narrates sexist comments against men, the sex discrimination claim by the claimant cannot succeed on this basis and is struck out. 49. Allegation 7 does not affect the claimant, both sex and age claims by the claimant cannot succeed on this basis and are struck out. 50. Allegation 8 narrates treatment of the claimant. The claim should proceed to a hearing based on race and is struck out for sex, age and disability. 51. Allegation 9 narrates treatment of the claimant. The claim should proceed to a hearing based on race and is struck out for sex, age and disability. 52. Allegation 10 describes the feelings of the claimant which may be relevant for remedy but is struck out as a complaint against the respondents. 53. Allegation 11 should proceed to a hearing based on race and race victimisation and is struck out for sex, age and disability as no basis for the claims is provided. 54. Allegation 12 should proceed to a hearing based on race victimisation. 55. Allegation 13 is struck out for both race and disability as it is not specific in any material respect. 56. Allegation 14 is not pled as race discrimination and is struck out as disability discrimination as no basis for the claim is provided.
CONCLUSION
[57]Allegation 15 is not pled as race discrimination and is struck out as sex age and victimisation claims as no basis is provided to sustain the claims.[58]Allegation 16 should proceed to a hearing based on race and race victimisation and is struck out as age discrimination as no basis for the claim is provided.[59]Allegation 17 should proceed to a hearing based on race and race victimisation and is struck out for disability discrimination as no basis for the claim is provided.[60]Allegation 18 should proceed to a hearing based on race and race victimisation and is struck out for age as no basis for the claim is provided.[61]Allegation 19 should proceed to a hearing based on race and race victimisation and is struck out for age discrimination as no basis for the claim is provided.[62]Allegation 20 should proceed to a hearing based on race and race victimisation and is struck out for sex, age and disability as no basis for the claim is provided.[63]Allegation 21 is struck out as a victimisation claim. A date is provided but the claim is not specific in any material respect.[64]Allegation 22 is struck out as a disability claim as no basis for the claim is provided.[65]Allegation 23 is not a claim of victimisation and is struck out.[66]Allegation 24 should proceed to a hearing based on race and race victimisation and is struck out for age as no basis for the claims is provided.[67]Allegation 25 may be relevant to remedy but is struck out as a claim of harassment for the merits hearing as no basis for the claim is provided.[68]Allegation 26 is a narrative and not a separate claim and is struck out.[69]Allegation 27 should proceed to a hearing based on race and is struck out for sex and age as there is no basis for the latter claims.[70]Allegation 28 based on race victimisation should proceed to a hearing.[71]Allegation 29 based on race victimisation should proceed to a hearing.[72]Allegation 30 may be relevant to remedy but is not a claim for the merits hearing and is struck out.[73]Allegation 31 should proceed to a hearing based on race and is struck out for age as there is no basis for the latter claim.[74]Allegation 32 based on race victimisation should proceed to a hearing.[75]Allegation 33 based on race victimisation should proceed to a hearing.[76]Allegation 34 is struck out as there is no basis for a claim based on disability.[77]Allegation 35 should proceed to a hearing based on race and is struck out for sex, age and disability discrimination as there is no basis for the latter claims.[78]Allegation 36 should proceed to a hearing based on race.[79]Allegation 37 should proceed to a hearing based on race victimisation.[80]Allegation 38 is struck out, although it is an allegation of race discrimination, it does not affect the claimant and cannot sustain claims of sex and age[81]Allegation 39 should proceed to a hearing based on race and is struck out for sex, age, disability and harassment as there is no basis for the latter claims.[82]Allegation 40 should proceed to a hearing based on race and race victimisation and is struck out for age discrimination as there is no basis for the latter claim.[83]Allegation 41 should proceed to a hearing based on race and race victimisation and is struck out for sex, age and disability discrimination as there is no basis for the latter claims.[84]Allegation 42 Is narrative and is struck out as a claim based on discrimination.[85]Allegation 43 Is struck out as a claim based on victimisation as there is no basis for the claim.[86]Allegation 44 should proceed to a hearing based on race victimisation.[87]Allegation 45 is a general summing up of the case and is unnecessary. The allegation is dismissed.[88]Allegation 46 should proceed to a hearing based on race victimisation.[89]Allegation 47 narrates contact with ACAS and is struck out as claims of disability discrimination and victimisation as there is no basis for the claims.[90]Allegation 48 is struck out as there is no basis for claims based on race, sex, age and disability discrimination and harassment except for “AOG shouted at me when I asked her a question.” which should proceed to a hearing for race and race victimisation.[91]The Tribunal has used the shorthand race victimisation where the narrative should be that the claimant claims that the respondent subjected her to a detriment because she had done, intended to do, or was suspected of doing or intending to do a protected act. The scope of the claim is restricted to race.[92]The Tribunal did not consider that it should make a deposit order. The assessment of whether there was little prospect of success in the remaining claims depended on the evidence of the claimant which the Tribunal was not in a position to determine. In addition, standing her financial circumstances, a deposit order would, in effect, prevent the remaining claims going forward.
CONCLUSION
[1]By a claim form presented on 18 April 2018, the Claimant complained of direct race discrimination and victimisation against her former employer, R1 and two of R1’s employees, R2 and R3. Claims of sex discrimination, age discrimination, disability discrimination and a number of allegations of harassment and victimisation were struck out at an earlier hearing. Application for Anonymity Order[2]On the first day of the hearing, the tribunal heard an application from the Claimant for an anonymity order. The order was opposed by the Respondent.[3]The basis of the application was that the Claimant wished to remain anonymous and had a reasonable right to do so under Article 8 of the Human Rights Act 1998. It was not in the public interest for the matters in her case to be in the public domain. It was said that the Claimant suffers from Dyspraxia and because of her experiences at work, this had brought on anxiety and depression. If these matters were in the public domain, they would cause damage to her reputation, stigmatisation and would adversely affect her employment prospects.[4]It was submitted on behalf of the Respondents that the starting point is that justice must be carried out in the public domain and that the Claimant had to show that it was strictly necessary to depart from that principle. That was a high hurdle and there is nothing in the Claimant’s submission to weigh in the balance with her Article 8 rights. The real reason the Claimant wanted anonymity was to avoid the embarrassment of the fraud allegations against her being aired in public.[5]The case: BBC v Roden UKEAT/385/14 was cited by the Respondents and we have taken this into account. Decision on Anonymity Order[6]The tribunal has power to make an anonymity order under Rule 50 of the Employment Tribunal Procedural Rules 2013. In making such an order, the tribunal must have regard to the principle of open justice and to the convention right to freedom of expression. As an anonymity order interferes with those principles, it should only be made in exceptional circumstances and even then, should only go so far as is necessary in the interests of justice or in order to protect the Convention rights of any person. It is for the person seeking the order to satisfy the tribunal that such exceptional circumstances exist.[7]The reasons for the application fall far short of exceptional circumstances justifying a departure from the principle of open justice. That the Claimant suffers from particular medical conditions is not remarkable. In a jurisdiction such as this, which deals with disability discrimination cases, Claimants present with disabilities as a matter of routine. That is not, in itself, a good enough reason to hear a case in private. A discrimination claim against a public body such as R1 is something the public would be interested in knowing about and we are satisfied that the Claimant’s Article 8 right to privacy, such as it is, is outweighed by the public interest in having her case dealt with in the public domain.[8]Having considered the parties’ representations and the guidance set out in BBC v Roden, the unanimous decision of the tribunal is that the application is refused.
The Issues
[9]The Claimant makes 27 separate allegations against the Respondents, which can be described in broad terms as complaints of bullying and harassment. They are set out in a Scott Schedule at pages 165-174 of the bundle. The most serious of the allegations are allegations of assault against the R2, R3 and a Ms Brookman. The Claimant alleges that Ms Brookman pushed and hit her causing her shoulder pain for a month. She claims that R2, her interim manager, physically assaulted her by hitting her back and shoulders causing her pain and stress. And that R3 assaulted her by hitting her hand and pushing it off the computer mouse, causing pain to her wrist and arm for a couple of months and causing her recurring nightmares. All of these assaults were said to have occurred in an open plan office and with no witnesses present.[10]Having made multiple applications to adjourn today’s hearing without success, including going to the EAT, the Claimant has not attended. She has however been represented by Mr Marchant, even though she had used his unavailability to attend today as one of the reasons for requesting an adjournment.[11]Given that this is a discrimination claim, the Claimant has the initial burden of proving facts from which the Tribunal could conclude discrimination.[12]The Claimant has produced a witness statement for these proceedings. As she has not attended, the question arises as to how much weight we can attach to her statement. In attendance to give evidence on behalf of the Respondents were R2 and R3, Stephen Warren (SW) Director of Commissioning; Bunmi Brookman (BB) Interim HR Business Partner; and Mike Sexton (MS) Chief Finance Officer.[13]Given the serious nature of the allegations; the fact that they were disputed; and the absence of independent witnesses to the alleged events, the relative credibility of the parties was a key factor in the tribunal’s decision making. The Claimant was not present to be cross examined. On the other hand, the Respondents and their witnesses gave evidence on oath and their evidence was not challenged.[14]In those circumstances, to the extent that the Claimant’s witness statement conflicted with the Respondents’ evidence, we preferred the evidence of the Respondents. However, we go further than that. Because of serious doubts we have about the Claimant’s credibility, we not only prefer the Respondents’ evidence in its entirety, we find that the allegations are untrue.[15]In reaching that conclusion, we have taken account of the following:a. We have seen evidence in the bundle that the Claimant lied about her qualifications when she applied for her role with the Respondent. She said in her application that she had an MSC from Imperial College, London (she refers to it as Imperial University) in Molecular Biology and Pathology of Viruses. As part of its fraud investigation, the Respondent wrote to Imperial College for verification of the Claimant’s degree and the response received was that the Claimant had not attended that college [670]b. The Claimant told the Respondent when she was recruited that she had worked for Action Aid as a Director for over 4 years. However, we have seen in the bundle a letter from Action Aid confirming that they had no record of the Claimant. [663-666].c. On the 27 March 2018, the Claimant attended a formal disciplinary investigation and was asked about these discrepancies in her application. MS gave evidence that she was unhelpful, unwilling to engage, evasive and vague. In essence, she failed to provide any credible explanation for the discrepancies. We accept that evidence.d. The Claimant did not raise the alleged assaults with the Respondent until 21 March 2018, after she had resigned. [663-664] Yet in January 2018, she had spoken to SW about her difficult working relationship with R2 and R3 but did not refer to any assault on that occasion. On 19 February 2018, the Claimant made a formal written complaint against R2 of bullying and harassment but there was still no reference to an assault, even though the alleged assault by R2 is said to have happened on 10 January 2018 and the alleged assault by R3 on 15 January 2018. [526-527]e. On 1 March 2018, the Claimant met with SW to discuss her grievances. His evidence to the tribunal was that at the meeting, the Claimant said to him that she would drop the bullying allegations if the capability process against her was stopped. That the Claimant was prepared to barter pursuing serious allegations of bullying and assault in exchange for not being performance managed appears to us to be rather manipulative and completely undermines the credibility of the allegations.f. Turning to the events of the last couple of days, the tribunal agreed to an adjournment of the proceedings on Tuesday afternoon because the Claimant told us that she was suffering from panic attacks and heart palpitations arising from the condition: Sinus Tachycardia, which she said she had suffered from for many years. She assured the tribunal that she would be fit to attend on Thursday (We were not due to sit on the Wednesday). The tribunal took the Claimant at her word and granted the adjournment but told her to produce medical evidence by Thursday, when the hearing was due to resume.g. On the Wednesday, the Claimant wrote to the tribunal asking for a further adjournment on grounds that she was still unfit because of her condition. She failed to produce any credible medical evidence of an existing condition or her inability to attend the resumed hearing and on that basis, her request was refused. She then made a number of subsequent requests citing different reasons, none of which were credible. For example, she claimed in one of her letters that she needed an adjournment to obtain legal representation as she was too ill to represent herself. When the tribunal again refused the request, pointing out that she already had a representative, the Claimant’s reply was that her current representative, Mr Marchant, had informed her that he was unable to attend on Thursday. Mr Marchant had been present on Tuesday and had made no mention of this to the tribunal. In the event, Mr Marchant did attend the resumed hearing and confirmed to the tribunal that he was always going to do so. When asked to explain why the Claimant had reported otherwise, Mr Marchant put this down to crossed wires between them. We think he was being very generous to the Claimant, which is understandable, given the difficult position she had put him in. We do not believe that there were crossed wires at all. In our view, this was a deliberate lie by the Claimant to secure an adjournment by any means.[16]For these reasons, we find the Claimant to be totally lacking in credibility. This is therefore one of those rare occasions where we are prepared to find, not only that the allegations are not proved, but also that they are untrue. Judgment[17]The unanimous decision of the tribunal is that all claims against all Respondents fail and are dismissed.
The Issues
[1]This was a hearing to consider the costs application of the first respondent dated 29 May 2019, following our judgment on liability in this case, sent to the parties on 1 May 2019.[2]The application was made under rule 76(1)(a) and (b) of the Employment Tribunal’s Rules of Procedure 2013 (the “Rules”). Rule 76 provides that if a party against whom an application for costs is made is considered by the tribunal to have either, in bringing the proceedings or in conducting them, acted vexatiously, abusively, disruptively or otherwise unreasonably, or the claim or response had no reasonable prospect of success, then the tribunal must consider making a costs order against that party.[3]As a starting point, it is important to point out that costs do not follow the event in this jurisdiction and are still relatively unusual. Where they are awarded, they are intended to be compensatory, not punitive. Issues[4]The issues that we have to determine are:a. whether the threshold for a costs order has been met;b. whether a costs order should be made; andc. if so, in what amount[5]In dealing with these issues, we have taken into account our findings on liability and the parties’ written and oral representations. The Claimant gave evidence as to means but for reasons explained below, we have not taken that evidence into account. Has the threshold for a costs order been met[6]At paragraphs 16 of the liability judgment, we say that the Claimant was totally lacking in credibility and that her allegations were untrue. For avoidance of doubt, by untrue we mean that they were lies. Those conclusions were based on our findings at paragraphs 14 and 15 of the judgment, which are generally findings about the Claimant’s credibility in relation to a number of disputed matters.[7]The Claimant’s lies were significant and went to the heart of her race discrimination claim. The allegations were of a serious nature - assault and racial harassment. Had the Tribunal accepted the Claimant’s evidence, it would have resulted in her claim being upheld. That in turn would have had reputational and financial consequences for the Respondents. We also bear in mind that this case involved individual Respondents and their reputations and, potentially, their careers could have been severely damaged by a discrimination judgment against them personally. The claimant must have made the allegations knowing them to be untrue and to present a claim on a false premise and persist with it was in our view wholly unreasonable. That unreasonableness was compounded by the Claimant’s refusal to heed the two cost warning letters sent to her by the Respondent’s representatives on 13 August 2018 and 15 August 2018. On both occasions, the Claimant was invited to withdraw her claim without any cost consequences. In the final letter she was advised that the costs to date were £6000 plus VAT and that the costs to the full hearing were likely to be £48,000, which she may be ordered to pay. Her submission to us that she brought the claim in good faith and that there was no ill intent is not accepted. Further, her submission that the Respondents acted unreasonably by incurring the cost of defending the claim rather than settling with her was an unattractive one in the circumstances.[8]We are satisfied that the Claimant acted unreasonably in bringing and pursuing the claim. We find that the threshold for a costs order has been met. Should a costs order be made[9]Rule 84 of the Rules provides that in deciding whether to make a costs order, the Tribunal may (my emphasis) have regard to the paying party’s ability to pay. To that end and as part of the directions for this hearing, the Tribunal wrote to the Claimant on 20 July 2019, asking her to provide evidence as to her means. At the hearing, the only document produced was a one page Nationwide account statement summary showing a starting balance of nil and no transactions between 13/1/19 and 13/8/19. There was no information outside that date range.[10]The Claimant gave oral evidence as to her means. The evidence was, sketchy, confusing and inconsistent under questioning. Overall it was totally lacking credibility. She told us that the Nationwide account, referred to above, was her only bank account and that she had withdrawn the last £500 in or around August/September 2018. Of that sum, she donated £100 to the church and lived on the remaining £400, spending the last £5 of that sum on the day of this hearing, on an Oyster card. When asked how she had managed to support herself on £400 for 14 months, she said that she had been living rent free and utility free at a friend’s house for the last 11 months. There was no evidence, written or otherwise, from this so-called friend and the Claimant very reluctantly revealed her name after being directed to do so.[11]We are aware from documents produced for the liability hearing that the Claimant had an account with Natwest Bank. When she was asked about this in cross examination, she said that the account had been dormant and was closed it in May 2018. No documentary evidence was produced in support of this.[12]Despite the fact that, on her own evidence, the Claimant has been living on, effectively, £1 a day, for the last 14 months, she told us that she had not applied for any benefits. When asked why not, she gave a number of answers. She said that she intended to go abroad for medical treatment, to be paid for through crowd funding (this has not happened). She said that she did not claim benefits because she was self-litigating and looking for a job. She also said that she was too stressed to claim benefits because of the litigation and because she was depressed. Incidentally, the Claimant has made a number of references to health issues during the course of these proceedings but has produced no evidence in support. We did not consider any of these reasons to be plausible.[13]The Claimant told us that she has been unemployed since her termination and has been actively looking for work since then, without success. However, her evidence on her job search was sketchy and inconsistent.[14]Having already concluded that the Claimant is not a credible witness, we were not prepared to accept her evidence on face value. Given the lack of any supporting documentation and the general implausibility of her evidence, we have decided to disregard the evidence in its entirety.[15]In the absence of satisfactory evidence as to means, we have assumed that the Claimant is able to meet a costs award. Even if we are wrong on that, it is clear from Arrowsmith v Nottingham Trent University [2011] EWCA Civ 797; Vaughan v London Borough of Lewisham & Ors UKEAT/0533/12/SM and Chadburn v Doncaster & Bassetlaw Hospital NHS Foundation Trust & Ors UKEAT/0259/14/LA; that costs may be awarded even if the Claimant cannot currently afford to pay.[16]We bear in mind that the first Respondent is an NHS Trust and that the costs that have been incurred come ultimately from the tax payer. We therefore consider it just and equitable that they should be able to recoup some of this expense.[17]In the circumstances, we consider it appropriate to make a costs order in this case. Amount of costs award[18]The Respondent’s costs schedule sets out costs totalling £50,411.30. However, for the purposes of their application, theyp are limiting their claim to £20,000, representing about 40% of the schedule. In those circumstances, any potential arguments relating to excessiveness and proportionality fall away.[19]Given that the sum claimed is a fraction of the total costs incurred, we see no reason to reduce it further. We award costs to the Respondent of £20,000.