Employment Judge MartinMr Kohanzad - Counsel for claimantMr Holloway - Counsel for respondentDate 12 August 2024
JUDGMENT
The unanimous judgment of the Tribunal is that the Claimant’s claims are dismissed.
REASONS
[1]On 4 June 2020 the Claimant presented a claim of sex discrimination. The Respondent prepared a response on 24 August 2020. There was a preliminary hearing on 15 March 2021 following which the Claimant particularised her claim by way of a Scott Schedule. This is appended to this judgment.[2]The Tribunal had before it a bundle of documents numbered to 961 (there were more pages than this in the bundle due to pages being added using a,b,c etc). The Tribunal had witness statements and heard evidence from The Claimant, Mr Jim Emmerson and Mr Stephen Wigg on her behalf. For the Respondent evidence was heard from Mr Marc Ellix, Mr Paul Kemp, Ms Katherine Styles and Mr Peter Barron. There was a witness statement for Mr Duarte, but he was not called to give evidence.
The hearing
[3]In December 2021, the Respondent had applied to extend the hearing to 20 days as there were allegations against 22 individuals at the Respondent. on 11 March the Respondent sent a further letter withdrawing its application to extend the length of the hearing. It explained that to call the witnesses would cause operational and safety critical difficulties for the signalling operations at the Respondent’s Wimbledon Area Signalling Centre and that on reflection the Respondent opted to limit itself to calling four witnesses. This meant that there was no live evidence from the Respondent about the individual allegations made by the Claimant.[4]There were a few technical issues during the hearing which were resolved and did not affect the presentation of the claim or the Respondent’s defence.[5]The Claimant wanted to give her evidence in a more formal setting. Therefore, arrangements were made for her to attend the Employment Tribunal premises in Croydon to give her evidence. All other participants attended by CVP.[6]On day three, during the Claimant’s evidence Mr Kohanzad raised a matter connected to the matters Mr Holloway had cross examined the Claimant about. Mr Kohanzad submitted that the Scott Schedule should not be read in isolation but should refer back to the particulars of claim.[7]It was submitted that the Claimant’s case was not limited to the narrow wording of the schedule and that at paragraph 13 of the particulars of claim, the Respondent understood the Claimant to be complaining about a leak of her grievance to the team as opposed to just HM. It was submitted that the pleadings trump the list of issues. Rather than interrupt the Claimant’s evidence, it was agreed that this would be discussed further after her evidence had completed.[8]After the Claimant’s evidence had concluded Mr Holloway responded to the points already made by Mr Kohanzad. In summary his submission was that there all allegations in the claim form had been transposed to the list of issues or the schedule. He submitted that the Claimant was now attempting to change the allegation to add in that someone else was responsible for the leak. The Claim form did not articulate how this aspect of the claim was brought or against who. Therefore, the Scott Schedule was ordered. Mr Holloway said that the Claimant was now trying to add in new particulars some 11 months after the schedule was completed. The decision not to call witnesses was based on the information provided by the Claimant in the Scott Schedule.[9]The Claimant submitted that the starting point was the pleadings and invited the Tribunal to consider paragraph 13. He suggested that the essence of the complaint is that the team were discussing it 48 hours after the grievance was made and this is what is covered in the pleadings.[10]After an adjournment in which the Tribunal carefully considered the pleadings and the Scott Schedule, the Tribunal rejected the Claimant’s submissions and accepted the Respondent’s. It accepted the Claimant’s argument that the pleadings trump the list of issues.[11]Paragraph 13 states: “The Respondent went on to share the Claimant’s grievance with HM and GB. Within 48 hours of her first grievance having been submitted, the Wimbledon signallers were aware of its contents and were discussing it whilst at work. The Claimant contends that the leaking of her grievance was an act of victimisation.”[12]The Tribunal considered carefully how this paragraph was constructed. It concluded that the second sentence relates to the consequence of the leak, rather than first two sentences which give the background and that the third sentence sets out the basis of the claim.[13]At the end of day 4, Mr Kohanzad said the Claimant was considering whether to add in that Mr Kemp was responsible for the leak about the grievance but would wait until he had given evidence before making an application to amend.[14]Mr Kemp gave evidence on days five and six. After his evidence Mr Kohanzad made an application to amend the Scott schedule item 28. The date of this allegation is “in or around July 2018. The allegation is that “Mr Kemp sought to interfere with the proper running of the investigation (see paragraph 17 of the Grounds of Complaint).” The amendment sought was to expand Mr Kemp’s involvement on the basis that even if he did consider the investigation to be completed, his communications were inappropriate even if it were to solve employment issues in the team.[15]Mr Holloway resisted this application. After a short adjournment he submitted that the application if granted would substantially change the case and it was not just to allow it. He commented on the manner and timing of the application, pointing out that all Mr Kemp’s emails had been disclosed prior to the claim being brought. Mr Holloway submitted that the Respondent had prepared based on the information given in the pleadings and Scott Schedule. If it were to be allowed, then the Respondent would need to call at least two further witnesses.[16]The proposed changes to the Scott Schedule allegation 28 were: “Paul Kemp sought to interfere with the proper running of the investigation. Paul Kemp sought to inappropriately pressurise the Respondent to have the Claimant return to work, be redeployed, or resign or in the alternative, be redeployed or resign”.[17]Having considered the application and the response to it, the Tribunal refused to allow the amendment the Claimant sought for the following reasons: Timing and manner of application[18]The application was made on day six, after Mr Kemp had completed his evidence. The Tribunal accepts that there may exceptionally be circumstances when such late amendments can be made.[19]The Claimant says it was only from Mr Kemp’s evidence that the amended issues became clear. The Respondent on the other hand says the emails the Claimant received from her Freedom of Information request had all the information needed, and she had them at the time of drafting both the ET1 and the Scott Schedule. Balance of prejudice[20]The Tribunal finds that there were emails from Mr Kemp which the Claimant had in which he set out options he considered appropriate for the Claimant. The Respondent would be prejudiced by allowing an amendment of this sought at this stage in the proceedings.[21]The Tribunal notes that there is no application to change the time frame set out in the Scott Schedule - ‘on or around July 2018’. On or around in our view would take us to about mid August. With reference to any prejudice to the Claimant by not allowing the application, the Tribunal considered that emails which post date this can used to back up the allegations around the investigation issue. To the Claimant there is not much prejudice as the emails of 19 May quoted in pleadings gives the two options, a and b.[22]The Respondent says it would need to call HM to give context to counter Mr Kemps evidence. The Respondent had decided who it wanted to call to give evidence based on the case as presented to them. The case as pleaded did not include this issue, so the Respondent was not on notice it was a live issue to deal with.[23]This is not a case where evidence was given which could not have been anticipated, as the emails which the Claimant had, clearly stated what Mr Kemp’s view was. The Tribunal does not find this to be one of the exceptional cases, where a late amendment is appropriate, and the Claimant’s application was refused.[24]There were many people mentioned in the hearing who had specific allegations made against them but were not present to defend them personally. Whilst the Tribunal recognises that this was largely because the Respondent chose not to call them, it considered it appropriate to discuss with the parties whether these people should be referred to by their initials in the written judgment as it is placed on the public register. The Tribunal recognised that essentially this was a balancing exercise between articles 6 and 10 of the Human Rights Act 1998. The Claimant had not wanted to name people during her grievance because she did not want them to suffer financially or reputationally because of the issues she raised. The Claimant submitted that article 8 rights outweigh article 6 and 10 rights, and it was proportionate to anonymise names. The Respondent was neutral observing that the general principle was that justice should be open.[25]Having considered this the Tribunal decided to anonymise the names of those named in the Scott Schedule but who did not attend to give evidence by using their initials rather than their full names.
The law
[26]The relevant statute is the Equality Act 2010. Direct discrimination[27]Section 13 provides that: “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” Section 23 provides that:[29]“On a comparison of cases for the purposes of section 13...there must be no material difference between the circumstances relating to each case.”[30]In considering the claim of direct discrimination, the first task of the Tribunal is to decide whether on the primary facts as proved by the Claimant, and any appropriate inferences which can be drawn, there is sufficient evidence from which the Tribunal could (but not necessarily would) reasonably conclude that there had been unlawful discrimination. If the Claimant can prove such facts, then the burden of proof passes to the Respondent to show that what occurred to the Claimant was not to any extent because of the relevant protected characteristic as set out in the Equality Act 2010. In each case, the matter is to be determined on a balance of probabilities. The fact that a claimant has a protected characteristic and that there has been a difference in treatment by comparison with another person who does not have that characteristic will not necessarily be sufficient to establish unlawful discrimination. In all cases the task of the Tribunal is to ascertain the reasons for the treatment in question and whether it was because of the protected characteristic. The provisions of section 136 of course apply to any proceedings under the Act, and not only to claims of direct discrimination. Victimisation[31]Section 27 provides: “(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;(c) doing any other thing for the purposes of or in connection with this Act;(d) making an allegation (whether or not express) that A or another person has contravened this Act. (3) In St Helens Metropolitan Borough Council v Derbyshire [2007] IRLR 540, HL Baroness Hale endorsed the three step approach set out in Chief Constable of West Yorkshire Police –v- Khan [2001] IRLR 830, HL with regard to the RRA, which equally applies to the EqA: “There are three relevant questions under the 1975 Act. First, did the employer discriminate against the woman in any of the ways prohibited by the Act? In this particular case, the alleged discrimination was by 'subjecting her to any other detriment' (contrary to s.6(2)(b) of the 1975 Act). Secondly, in doing so, did the employer treat her 'less favourably than ... he treats or would treat other persons'? Thirdly, did he do so 'by reason that' she had asserted or intended to assert her equal pay or discrimination claims or done any of the other protected acts set out in s.4(1) of the Act? Harassment[32]Section 26 of the EqA provides: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. . . (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect. (5) The relevant protected characteristics are - . . . disability”[33]A Tribunal should consider all the acts together in determining whether or not they might properly be regarded as harassment (Driskel –vPeninsular Business Services Ltd [2000] IRLR 151, EAT and Reed and Bull Information Systems Ltd –v- Stedman [1999] IRLR 299, EAT).[34]The motive or intention on behalf of the alleged harasser is irrelevant (see Driskel above).[35]The Court of Appeal confirmed in Land Registry –v- Grant (Equality and Human Rights Commission intervening) [2011] ICR 1390 “when assessing the effect of a remark, the context in which it is given is always highly material”.[36]In Richmond Pharmacology –v- Dhaliwal [2009] ICR 724 the EAT held that the Claimant must have felt or perceived his or her dignity to have been violated. The fact that a Claimant is slightly upset or mildly offended is not enough.[37]The word ‘victimisation’ is specifically defined by the Equality Act 2010 and has a different meaning from the normal use of the word. In considering a claim of victimisation the claimant must prove that there has been a protected act as defined. The claimant must also establish that there has been a detriment, and most importantly the Tribunal must find that the detriment was because of the protected act. A claim of victimisation cannot succeed without that causal link being established. Findings of fact and conclusions[38]The Tribunal has made the following findings of fact having heard the evidence and considered the documents and submissions. All evidence was considered even if not specifically referred to here. These finding are confined to those that are relevant to the issues, and necessary to explain the decision reached. One of the issues relates to whether the Tribunal has jurisdiction to hear the Claimant’s claims as they are out of time. To determine this, the Tribunal must make findings first. Therefore, the Tribunal considered each item in the Scott Schedule to determine if the things happened as the Claimant said they did and if so, whether they were discriminatory on the grounds of sex. We then considered the question of jurisdiction.[39]The Claimant worked as a signaller starting her employment on 1 March 2012. She is still employed by the Respondent. In November 2015 she moved to the signal centre at Wimbledon. This was considered a prestigious place to work. It is highly safety critical work.[40]The environment the Claimant worked in was male dominated with about 40 staff in total, of which two or three were women. The Claimant’s case is that from the first day working at Wimbledon she was subject to sex discrimination.[41]The Respondent recognises the RMT union. Of those employed at Wimbledon about 98% were members. There were two union representatives working in the Wimbledon signalling centre and Mr Kemp who did not work there. RB, one of the representatives was also one of the people the Claimant made allegations about. The Claimant was originally represented by the RMT but after a meeting in June 2017, the Claimant was unable to contact her representative so instead sought advice from UNITE.[42]The Claimant’s line manager was Mr Ellix, he joined the Respondent shortly before the Claimant went on sick leave. He took over from HM, who had been promoted and was Mr Ellix’s line manager. HM had been managing Wimbledon signalling box for some years.[43]The Claimant has made many allegations of discriminatory treatment. The totality of the Scott Schedule is appended to this order. We have used the schedule taking out some information so our findings of fact and conclusions on the individual allegations can be added into the table.
The evidence
[44]The Respondent chose not to call the individuals who are named in the Scott Schedule. There is no documentary evidence about the allegations made by the Claimant. The Claimant’s evidence was therefore largely unchallenged. Not all the allegations the Claimant now makes were in her grievance.[45]There were questions put to the Claimant about differences in her evidence at different times. It was suggested that this rendered her evidence unreliable. Given that there was no direct evidence from the Respondent in relation to the allegations themselves the Tribunal had to carefully consider reliability of the evidence it heard and in so doing had to assess the witnesses before it.[46]The Tribunal found the Claimant’s evidence to be credible. As often happens when events have taken place some time ago, there are variations in the evidence given at the time the events occurred and at various stages in the grievance and tribunal process. This is to be expected. It would be very unusual, especially when there is emotional distress too, that every detail is fixed in the memory.[47]There was no direct evidence to rebut the allegations. All we could refer to are the statements taken during the grievance process. The Tribunal does not lend much weight, if any, to them. This is because of the way the interviews were conducted (this is discussed further below) and because it appeared that the staff interviewed were not cooperating fully in the process. To compound this, not all the relevant personnel were interviewed at the time. Initially, the Claimant was reluctant to name names as she was aware of the impact the allegations would have not only for the perpetrators but for their families. However, she did eventually name names, but even then, not everyone was interviewed. It should have been clear that the range of people who should have been interviewed was much greater than just those who were interviewed.[48]Mr Wigg and Mr Emmerson gave evidence for the Claimant. Much was made by the Respondent of the fact that Mr Wigg is the Claimant’s current partner and Mr Emmerson was her former partner. It was suggested that their evidence should not be relied on as they would be biased and would obviously want to help her. Whilst the Tribunal agrees this is a factor to be considered, it does not mean that their evidence has no value or should be given little weight. Given the Claimant’s relationship with them (she is still friends with Mr Emmerson) it is likely that she would talk to them about what happened in the workplace especially as they were familiar with it. They may not have been able to give direct evidence about many of the allegations as they were not there, but they could give valuable background evidence about the culture in the signal box. They also worked for the Respondent. It is against this culture that the matters the Claimant complained about arose.[49]The Tribunal finds on the balance of probabilities that all the allegations pre grievance happened as the Claimant described them. It recognises that some were not set out in the grievance, however, it acknowledges that where there are so many allegations some may be left out. This is not a case of the Tribunal considering something happened. The Tribunal believes the allegations as set out in the Scott Schedule did happen.[50]There may be variation in the detail, however the substance of the allegations did not change. The Tribunal could not think of a reason that the Claimant would make up these allegations. Ms Styles, Mr Ellix and Mr Barron all said they believed things had happened and they could not give an explanation as to why she would make such extreme matters up. This is not the case of the discrimination being the occasional sexist comment or pat on the bottom, the matters described are much more extreme.[51]The Tribunal therefore finds that all the events happened as set out in items 1 – 25 of the Scott Schedule. The question is whether these amounted to discrimination on the protected characteristic of sex. For the purposes of this decision at this stage, the Tribunal has taken the Claimant’s claims at their highest namely that all events happened, and all events were discriminatory on the grounds of sex.[52]Whether the matters in items 1-25 were brought in time depends on the Tribunal’s findings in relation to the allegations from the grievance onwards (items 26 - 34 on the Scott Schedule). On the face of it, the first 25 allegations are out of time, and it is only if they can be linked to the remaining allegations to form a continuing act of discrimination that they will be deemed to be in time and give the Tribunal the jurisdiction to consider them. Had the Tribunal found them to be part of a continuing act it would have gone on to consider each allegation individually to consider if they were acts of discrimination, or other non-discriminatory actions. Post grievance allegations[53]The Tribunal considered the evidence which was given in relation to items 26 – 34 of the Scott schedule. Ms Styles was candid in her evidence, accepting that she had got matters wrong, and accepting her limitations in being able to deal with such an extensive and wide-ranging grievance. Ms Styles was very inexperienced in conducting grievances having only dealt with one before. What was apparent from her evidence and the documents relating to the grievance process, is that she did not fully understand her role. This is not surprising, as she was given little or no guidance or support and was expected to do her full substantive role at the same time. She said that if she were presented with a grievance of this magnitude again, she would insist on being taken off her substantive duties to enable her to devote sufficient time and resource to the grievance process.[54]On reading the minutes of the interviews it is striking that Ms Styles took what was said at face value without any follow up or probing. This is despite her evidence that she believed in much of what the Claimant had alleged. She appeared to be unaware of the burden of proof to be applied, and that she should make her findings on the balance of probabilities. She appeared to consider that she had to make findings beyond reasonable doubt and that she needed corroborating evidence from those she interviewed. No doubt this was because of inadequacies in the training and support she was given.[55]What was also striking was the number of allegations made by the Claimant which were not investigated at all. This was spelt out clearly by the questions Mr Kohanzad asked in cross examination. There was a long list of allegations in the grievance put to Ms Styles which she agreed she had not investigated or considered. From the Judge’s notes of evidence there were 21 matters not considered. The Respondent commented on the Scott Schedule and says frequently that there was no evidence to back up the Claimant’s claims. This is not surprising, because a significant number of witnesses were not called, and even if they were, were not asked questions about many of the allegations made by the Claimant.[56]The investigation was a shambles, and the conclusions reached were inadequate. Whilst this was unreasonable, the Tribunal is mindful that this is not a claim of unfair dismissal. It is a claim of discrimination. The question to be answered is whether the actions of Ms Styles amounted to less favourable treatment on the grounds of sex. There needs to be a causal connection between the two. Not only this, but parts of documents were lost, for example, the statement made by Mr Wiggs. The Tribunal finds that whatever the failings of the grievance investigation and outcome, this was not because of the Claimant’s sex but was because Ms Styles was overwhelmed by the grievance, was not adequately trained, and not properly supported. The Claims of direct sex discrimination and victimisation by Ms Styles are not made out. The appeal[57]There was a long period of time before the appeal was heard. It started with Mr Barron, was passed to others, then returned to Mr Barron. Mr Barron who finally heard the appeal admitted that he was out of his depth. He had only carried out one grievance appeal for the Respondent and had only been employed by them for a couple of months. He was not appraised of the gravity of the matter when first being handed the appeal only realising this on reading the grievance documents. He noted the allegations and said he noticed from the questions Ms Styles had asked that there were no indepth questions about the Claimant’s allegations which led him to believe that she had no interest in obtaining information which would support the Claimant’s account. The Claimant had asked for a substantial number of people to be interviewed (about 40) which Mr Barron considered to be disproportionate because it would take too long and was not required as many of the individuals had already been interviewed. The Tribunal find this curious given he did not think Ms Styles had asked in-depth questions. However, the Tribunal does accept that interviewing 40 people was not reasonable. Mr Barron agreed to interview four further people but could only interview two as the other two were on either sick or compassionate leave.[58]The appeal was not upheld as he found nothing to substantiate the Claimant’s allegations and that accounts of the culture in the signal box was that it was a ‘welcoming and inclusive environment’ (paragraph 47 (b) grounds of resistance). Mr Barron found that there was poor language used but this was not directed at anyone and that there was no evidence of pornography being viewed.[59]The Tribunal finds that the way in which Mr Barron conducted the appeal whilst having deficiencies was not done in that way because of discrimination but because he was insufficiently trained or supported throughout the process.[60]There was criticism of both Ms Styles and Mr Barron into their investigation into the use of shift signal managers’ computers. The Tribunal is satisfied that they took reasonable steps to investigate this.[61]The allegations relating to Mr Kemp who is a trade union representative are found in items 27 and 28 of the Scott Schedule. They are that he “drafted a template grievance for the use of colleagues who C had complained about and emailed this to MB” (a union representative who the Claimant complained about) and “sought to interfere with the proper running of the investigation (see paragraph 17 of the Grounds of Complaint)”. The Tribunal has dealt with the Claimant’s application to amend this aspect of her claim above.[62]The Tribunal finds that it is not unusual for a representative to assist its members in drafting a grievance. Mr Kemp is an elected lay Area trade union representative with the RMT. He drafted a template grievance letter for a member and the Tribunal find that this was part of his role. At this stage the Claimant had not named names. The Tribunal also recognises that Mr Kemp had been told that the grievance was concluded in June 2017, and he had been told it had not been upheld. He did not know that it had been re-opened and was in fact continuing. Whilst the Tribunal does have concerns about some of the communications the Tribunal accepts Mr Kemp’s evidence that the reason for them was that if the grievance had finished as he believed, then the management should be taking steps to get the Claimant back to work and managing the inevitable fall out from the allegations made. He made it clear in his communications that if the Claimant’s allegations were substantiated then the individuals concerned should be disciplined. On the other hand, if they were not substantiated then this also had to be managed appropriately.[63]It was suggested that Mr Kemp made threats of violence towards witnesses and intimidated Mr Emmerson. This was strongly denied by Mr Kemp and the Tribunal could not find evidence to suggest this happened as alleged.[64]The Tribunal finds that the matters alleged in items 26 – 34 of the schedule whilst being unreasonable were not acts of discrimination, either of direct discrimination, harassment or victimisation.[65]This means that there is no continuing act of discrimination which could bring items 1 – 25 of the schedule in time.[66]Section 123 Equality Act provides for a 3-month limitation period from the date that the act complained of was done. This can be extended if there are just and equitable grounds to do so.[67]In Robertson v Bexley Community Centre t/a Leisure Link 2003 [IRLR] 434 CA, it was noted that, while Tribunals have a wide discretion to extend time in discrimination cases, it should only be exercised in exceptional circumstances. ‘time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion.’[68]In O’Brien v Department for Constitutional Affairs [2009] IRLR 294, the Court of Appeal held that the burden of proof is on the Claimant to convince the Tribunal that it is just and equitable to extend time. In most cases there are strong reasons for a strict approach to time limits.[69]Throughout the matters complained of the Claimant was a member of the RMT. She sought advice from the RMT from an early stage. She then sought advice from another union. The Claimant had union representation at the grievance hearing. The Claimant did not provide any information about why she delayed bringing her claim to the Tribunal. Waiting for an internal process to complete is not sufficient. There was no evidence adduced either by oral testimony or documentary evidence that the Claimant was unwell such that she was prevented from bringing a claim or any other reason given. It is not known what steps if any the Claimant took to obtain advice other than via her union.[70]The Respondent submitted that it was for the Claimant to show why time should be extended. The Tribunal was referred to s33(a) Limitation Act 1980 which states that the Tribunal must look at the length of the delay and the reasons for the delay. It was submitted that there was a substantial delay with no reasons given for it. Given this, it was submitted that the cogency of evidence was likely to be affected on both sides as the allegations related largely conversations only. It was submitted that the Claimant acted very slowly, and that she should have known from November 2015 about the facts giving rise to this claim yet there was no evidence as to what she did to enforce her rights, prior to contacting ACAS on 20 March 2020.[71]The Respondent referred to the case of Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23 , CA. In this case, the claim was presented three days out of time, and it was held not to be just and equitable to extend time. It was said: "The best approach for a tribunal in considering the exercise of the discretion under section 123(1)(b) [Equality Act] is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time, including in particular, "the length of, and the reasons for, the delay". If it checks those factors against the list in Keeble, well and good; but I would not recommend taking it as the framework for its thinking."[72]The Claimant submitted that if the investigation was discriminatory, then jurisdiction was not in question. However, the Tribunal has found that the investigation was not discriminatory. The Tribunal was invited to start from the unvarnished question of whether it is just and equitable to extend time and must consider all the matters. It was suggested that the question of prejudice can be decisive. It was submitted that the only prejudice to the Respondent is its failure to call witnesses which was a choice it made. The Respondent does not say that the passage of time was a reason for not calling a witness. It was submitted that it was known why the Claim was late and it does not need an explanation in a witness statement. It is not expected that she would address any single permutation. Here there is a broad chronology that the Claimant went off sick, dealt with the issues internally and then she complained to the Tribunal which is not unreasonable.[73]In response the Respondent submitted that it is difficult for the Claimant to get around the fact that she has provided no explanation as to why she submitted her claim late. If reasons had been put forward there would have been a range of questions for her for example, what advice did she get, when did she seek it, why did she decide not to put claim in earlier when she knew of time limits. It was accepted that the Clamant did go off work, but she returned to work in November 2017, so this was not a valid explanation. It was emphasised that it is of relevance to consider the length or reason for delay. The Tribunal was reminded that the allegations ran November 2015 to May 2017.[74]The Tribunal has reluctantly concluded that the Claimant has provided no evidence on which it can exercise its discretion to extend time. It accepts the submissions made by the Respondent that the Claimant must give some explanation. It is not sufficient for her representative to give reasons in submissions, this is not evidence. The Tribunal accepts that the Respondent chose not to call witnesses and the reasons for this are set out earlier in this judgment. However, this does not detract from the fact that the Claimant has not provided any explanation as to why she did not present her claim earlier. It is inevitable that the length of time between the allegations and the presentation of the claim will prejudice witnesses. For the Claimant, the matters were significant and memorable. For the other witnesses it is likely that the matters were not of significance given it appears that this type of behaviour had been common for some time. Without explanation from the Claimant, it is not possible for the Tribunal to extend time. Therefore, the Claimant’s claims are dismissed. Employment Judge Martin Re-Amended 06 July 2022 ........................................................................................................... S Scott Schedule pursuant to Order of Employment Judge Ferguson dated 11 March 2021 NB: a) in relation to all allegations of direct sex discrimination the Claimant relies on a hypothetical comparator, b) and in relation to all allegations of harassment the Claimant relies on 'purpose' and 'effect'. No. Date Type of discrimination Alleged discriminatory conduct Location Alleged Perpetrator(s) Witnesses NR Response to Allegation 1 05.11.15 Direct sex discrimination or On her first day at work, when C offered to make tea for her On the Operating Floor at RS (Signaller) All those on RS's shift would have potentially This allegation dates back to 2015 the Respondent in the alternative sexual colleagues RS said something along the lines of "how do you like your Wimbledon ASC. witnessed the incident. C cannot remember names, did not interview anyone who could remember or harassment. oral sex, giving or receiving? ". He said this in front of the whole but thinks they will be named in the Roster and/or support this allegation. This allegation is therefore signalling shift present. Occurrence Book. denied. 2 C cannot recall the specific date but Direct sex discrimination or in the While C was being trained by WC on his panel, he walked off and left C On the Operating Floor at WC (Signaller) MG (Signaller) Those on the shift would have witnessed the incident. The Respondent denies this allegation. Further and in thinks it was between November alternative sex harassment. in control of the panel. A situation arose and C was not sure what to do. Wimbledon ASC. C cannot remember specifically who was working on any event the Respondent denies that this allegation 2015 - April 2016. Because WC was not there she had to make a decision on her own WC this shift, but it may have included AM (Signaller), PM constitutes discrimination and /or harassment because returned and loudly told C off, humiliating her, and then walked off (Signaller),PT (Signaller). of sex. Working in this kind of environment is very huffing loudly and repeatedly looking at C. The Signaller next to C was pressured and people react in different ways to stress, MG. After WC told C off, MG stopped observing his panel, and turned even if this incident had happened, which is denied, the to stare at C. Over the next hour, whenever C looked up from her reaction is in keeping with an individual making a panel, MG would stop observing his panel and stare at C. mistake in a critical environment, regardless of their sex. 3 24.12.16 Direct sex discrimination or MB played a pornographic scene on his device while on duty, On the Operating Floor at MB (Signaller) Steve Wigg (Signaller), CE (Contractor). Other The Respondent could find no evidence to in the alternative sexual proclaiming “there’s nothing like a bit of dwarf porn ”. At the time Wimbledon ASC. people on the shift could have witnessed the support this allegation. No one interviewed had harassment. his son, who was an unauthorised visitor, was sitting directly at the incident but C cannot recall names. The Roster witnessed this incident or the use of pornography signal panel. and/or Occurrence Book should list those generally. The Claimant's manager was shocked working on that shift. by this allegation and denies that pornography was being viewed as alleged or at all. 4 After Christmas 2016 Direct sex discrimination or in the AF and MB would walk behind C while she was working and On the Operating Floor at WC, AF (Signaller), MB, MG (Signaller), Those on the shifts would have witnessed this The Respondent found no evidence to support this alternative sex harassment. deliberately burp loudly as they walked past. Around this time WC sat Wimbledon ASC. TC (Shift Signalling Manager - "SSM"). behaviour. C cannot recall specific names, but thinks allegation. Further and in any event the allegation does next to C and deliberately burped loudly and continuously for in this may include AM, BF (Signaller), VS (SSM) and AF not constitute discrimination and/or harassment excess of 15 minutes. C eventually asked him if he was ok. For many (SSM). because of sex. weeks after this, colleagues (in particular AF, MGTC, WC and MB) would burp during a shift with C and loudly say “excuse me! ”. 5 Between November 2015 to May Direct sex discrimination or in the Colleagues made deliberate and gratuitous use of the word "cunt" On the Operating Floor at TCPT, AF and RS. There are too many instances to remember the It is admitted that in such an environment foul 2017. alternative sex harassment or around C, in particular PT, AF and RS. This was on practically every Wimbledon ASC. names of potential witnesses. But the comments language is sometimes used, although the Respondent sexual harassment. shift that C worked. In addition, C recalls one incident in around would have been witnessed by those working on C's does not condone this. Both female staff members spring 2017, when TC called a driver that had made a mistake a shift and these may have included JP, JB, MB, DT, CA, who were interviewed said they had never heard this "soppy cunt ". KS, AM. PB witnessed TC's comments about the particular word being used. driver. 6 C cannot recall the specific date but Direct sex discrimination or in the PT said "there is no such thing as a good cunt ". On the Operating Floor at PT. Those on the shift would have witnessed the incident. C As above thinks it was between April 2016 - alternative sex harassment or Wimbledon ASC. cannot remember specifically who was working on this May 2017. sexual harassment. shift, but it may have included AM, PM (Signaller), MG 7 C cannot recall the specific date but Direct sex discrimination or Male colleagues would often leave the newspaper open in the kitchen Kitchen at Wimbledon ASC. C did not know who was leaving the Those on the shifts in question would have The Respondent does not condone any sort of thinks it was between April 2016 - in the alternative sexual on page 3 (for the Sun) or page 5 (for the Star) with naked women on newspaper open because this witnessed the incident. C cannot remember pornographic material in the workplace. There May 2017. harassment. show. If C closed the paper, when she returned to the kitchen it would would happen when she was not specifically who was working on these shifts. is no evidence to support this allegation. be open on that page again. there. 8 C cannot recall the specific date but Direct sex discrimination or RS looked at almost naked women (with two thin lines over their On the Operating Floor at RS People working on the shift with R- BF, TC,DW (Signaller) The Respondent does not condone any sort of thinks it was between April 2016 - private parts) on a Company pc terminal. Wimbledon ASC. pornographic material in the workplace and all in the alternative sexual employees have been trained in diversity and May 2017. harassment. inclusion. There is no evidence to support this allegation. 9 C cannot recall the specific date but Direct sex discrimination or in the AF was on the back row in the Operating Floor and started showing On the Operating Floor at AF and RL (Signaller) Everyone on the shift apart from C went to the back of No evidence to support this allegation, it is denied. thinks it was between April 2016 - alternative sex harassment or something on his device to colleagues. RL said “you wouldn’t want to Wimbledon ASC. the room to look at AF' device. RL was on the shift. C May 2017. sexual harassment. see that when you took her knickers off” and "she's a fit bird - that's thinks that the following people may also have been on just wrong". the shift: WC, CA (Signaller). 10 C recalls that it was a Sunday shift, but Direct sex discrimination or MB had a conversation with DT in which MB discussed rape scenes On the Operating Floor at MB DT (Signaller). In addition, people on shift The Respondent found no evidence to cannot recall the date. C thinks it was in the alternative sexual from several films, and discussed the actresses in these scenes, Wimbledon ASC. could have witnessed the conversation. This support this allegation, it is therefore denied. between April 2016 - May 2017. harassment. expressing pseudo concern. The conversation went on for about 20 may have included MB (Signaller), KS minutes. C was the only woman in the room. (Signaller). 11 C cannot recall the specific date but Direct sex discrimination or BF came back from the toilet and said he had been in the On the Operating Floor at BF CA and JP (Signaller). The respondent found no evidence to support this thinks it was between April 2016 - in the alternative sexual toilet “spanking the monkey”. Wimbledon ASC. allegation, it is therefore denied May 2017. harassment. 12 C cannot recall the specific date but Direct sex discrimination or in the During one of C's shifts, there was an irregular signal sequence and C On the Operating Floor at VS and AF. Jim Emmerson (Signalling Technical Support) was The Respondent has ensured that all employees are thinks it was between April 2016 - alternative sex harassment. mistakenly passed a call to a trainee colleague, JP. JP was taken aside Wimbledon ASC. there when AF purported to quote VS's comments. trained in diversity and inclusion and does not May 2017. by the Qualified Signaller on duty, WC, and was told it was C's signal Other witnesses would include those on the said condone these behaviours as alleged or at all. and not to let her shirk her work. At C's request she met with WC shifts with VS and AF. C does not know who this and VS to discuss the issue. During a subsequent shift VS told would be as she was not there. colleagues, including AF, about this meeting. AF then repeated VS's comments to colleagues, alleging that V had said, "this is what you get when you let women in the signal box ”, going on to mention something about “women’s hormones”. 13 C cannot recall the specific date but Direct sex discrimination or in the During a shift C was on the phone to a colleague making a safety critical On the Operating Floor at PB (Signaller) Some of those on the shift would have PB is a very experienced employee. The thinks it was between April 2016 - alternative sex harassment. call. C noticed she was being observed because the room went quiet. C Wimbledon ASC. witnessed the incident. C cannot recall who Respondent believes that if he was listening to May 2017. turned around to see that PB, who was standing nearby, was listening was present, but thinks the Shift Manager may the conversation it was to check the to C's call and had turned away from his panel to face C and was have been AF. information was correct, given that the looking at her with an expression of disdain. When C looked at him PB employees work in a safety critical role. continued to stare at C in an intimidating manner until she had to look away. 14 C cannot recall the specific dates but Direct sex discrimination or in the During a night shift C made an operational error locking up some On the Operating Floor at AF and PB. JB (Signaller), TC (Signaller), AA (Signaller). In This is the Claimant's perception of what occurred thinks it was a night shift during April alternative sex harassment or points. At the time C was training a Trainee, JB. C called over the Shift Wimbledon ASC. addition, those present on the shift. C cannot recall and she was given help and the situation was 2016 - May 2017 sexual harassment. Manager, AF. Neither C nor AF knew how to resolve the issue. PB, a specific names. resolved. The allegation that this is somehow linked long standing and experienced Signaller, was near to C and could see to discrimination and/or harassment because of sex what was happening, but just stood there looking at C, declining to is denied. help. C perceived this as PB wanting her to fail. AA, who was a less experienced Signaller than PB and who was positioned further away, came over to help and resolved the issue. AF, then suggested that C should sit on JB's lap to pacify him. 15 C cannot recall the specific date but Direct sex discrimination or in the When talking to PB, DP described C as an “apocalypse On the Operating Floor at DP PB. The Respondent does not understand this allegation. thinks it was between April 2016 - alternative sex harassment. waiting to happen ”. Wimbledon ASC. More specifically, if the event occurred as alleged, why May 2017. this would constitute discrimination and/or harassment because of sex? 16 C cannot recall the specific date but Direct sex discrimination or in the On numerous occasions colleagues would whistle the Laurel & Hardy On the Operating Floor at SL. Those on shift at the time would have witnessed The Respondent does not understand this allegation. thinks it was between April 2016 - alternative sex harassment. tune around C. When this happened, C's colleagues would go silent Wimbledon ASC. this. There were many occasions and C cannot recall More specifically, if the event occurred as alleged, May 2017. and look at each other. On several occasions the tune was whistled by who was on those shifts, but it may have included why this would constitute discrimination and/or SL. C cannot recall the other colleagues that whistled the tune. TC and SJ. harassment because of sex? 17 C cannot recall the specific date but Direct sex discrimination or in the C was trying to speak to the Shift Manager, TC, to provide information, On the Operating Floor at RS, TC and SJs. Those on shift at the time would have witnessed this, and The Respondent found no evidence to support this thinks it was between April 2016 - alternative sex harassment. but he did not hear her. RS shouted across the room, in front of Wimbledon ASC. this may have included BF. allegation, it is therefore denied. May 2017. everyone on shift, "Tony, the fat woman over here wants to speak to you ”. TC and another colleague present, SJ, laughed. TC or SJ then played the Antiques Roadshow theme music on a device and both continued to laugh. 18 C cannot recall the specific date but Direct sex discrimination or in the When female drivers made a mistake, they were spoken about On the Operating Floor at PT and PM These comments were made on multiple This allegation is denied – the Respondent thinks it was between April 2016 - alternative sex harassment. differently by some male Signallers, in particular PT, and PM. They Wimbledon ASC. occasions. Those on the shifts would have questioned the other female employees working May 2017. would highlight the fact that the driver was a woman. witnessed the comments. C cannot recall in Wimbledon on this point, both said they specific witnesses but thinks that AM and Steve would be spoken to if they had made a mistake, Wigg (Signaller), may have witnessed these but this would be no different than how other comments. male members of the team were spoken to. 19 C cannot recall the specific date but Direct sex discrimination or in the On 3 or 4 occasions while C was on at work (as the only female On the Operating Floor at PT Those on the shifts with PT would have witnessed This allegation is denied. It is accepted that general thinks it was between April 2016 - alternative sex harassment. employee on the shift) PT would say things like " do you think Wimbledon ASC. these incidents. C cannot recall who was on these banter goes on in the workplace but the May 2017. women should be in the workplace? ", and "I think women should shifts. Respondent will not tolerate sexist banter – or be in the home ". indeed any sort of banter that could be perceived as discriminatory. 20 C cannot recall the specific date but Direct sex discrimination or PT brought in a sex toy, displaying it to colleagues, and while doing so, On the Operating Floor at PT and TS Those on the shifts withPT and RS would have This allegation is denied. There is no evidence to thinks it was between April 2016 - in the alternative sexual would look at C and smile. He did this for about 15 minutes while Wimbledon ASC. witnessed these incidents. Steve Wigg witnessed support this allegation. May 2017. harassment. everyone in the room was quiet. The next day, the sex toy was still in one of the occasions. C cannot recall who else was the room, and RS picked it up and said "look Rowena", while holding it on these shifts. up. 21 C cannot recall the specific date but Direct sex discrimination or in the While C was on shift, it was coming up to dinner time. TC took orders for On the Operating Floor at TC DW. In addition, those on the shifts would have The Claimant was included – she was asked if she thinks it was between April 2016 - alternative sex harassment. a takeaway, and asked everyone apart from C. This was noticed by DW Wimbledon ASC. witnessed this behaviour. C cannot recall specific wanted to order. She did not. May 2017. who asked C if she wanted anything. TC did not say anything to C. C was names, but may include BF and RS upset about being excluded and so said to DW that she did not want to make an order. 22 C cannot recall the specific date but Direct sex discrimination or in the During a shift on a Saturday, a meal was planned for the following day. On the Operating Floor at SJ (Signaller) Those on the shift would have witnessed this, which The evidence from the witnesses is that someone thinks it was between April 2016 - alternative sex harassment. C is a vegetarian, which was known to her colleagues. DW was going to Wimbledon ASC. may include DW, TC, BF and RS cooks and everyone can help. There are bound to be May 2017. cook the meal and asked C if she wanted him to make her a vegetarian times when an individual does not like the meal option. C was very happy that someone was being nice to her and said cooked or cannot eat the meal and will have to seek yes. The next day SJ, and not DW, cooked the meal, and despite out another option. The Respondent does not accept knowing that C is a vegetarian, made a meat based meal with no this was a deliberate act against the Claimant. vegetarian option. C therefore had to go out on he own to get her own meal. 23 C cannot recall the specific date but Direct sex discrimination or in the AF stared at C with disdain and hostility and huffed loudly after C On the Operating Floor at AF and VS Those on the shift would have witnessed the This is the Claimant's perception of the alleged thinks it was between April 2016 - alternative sex harassment. made an easily rectifiable mistake. Shortly after, on the same shift, C Wimbledon ASC. incident, which may have included AM, PT, incident. The Respondent found no evidence May 2017. opened a snack. AF and D looked at C and VS said C was being a bit MG and PM. to support the allegation noisy. Male colleagues who regularly spoke loudly did not receive comments like this. C offered AF and VS some of her snack, and AF sneered at C and turned away. 24 C cannot recall the specific date but Direct sex discrimination or in the Often, goodbyes from a male Shift Manager, TC, were restricted to On the Operating Floor at TC The comments were made on numerous occasions, The Respondent found no evidence to support this thinks it was between April 2016 - alternative sex harassment. “gents” being said as he left work. Wimbledon ASC. and those on the shift would have witnessed them. allegation. The two female colleagues at Wimbledon May 2017. C cannot remember specifically who was working denied that they work in a sexist environment. on these shifts, but it may have included BF, RS, DW. 25 C cannot recall the specific date but Direct sex discrimination or in the During a shift, C was on a busy panel and her computer terminal On the Operating Floor at TC Those on the shift would have witnessed the incident. This allegation is denied. This in an extremely stressful thinks it was between April 2016 - alternative sex harassment. stopped working. C reported this to TC, the Shift Manager, who spoke Wimbledon ASC. C cannot remember specifically who was working on environment and at times staff become curt with one May 2017. to IT. TC became more and more hostile towards C while the problem this shifts, but it may have included BF, RS, DW. another, regardless of sex. persisted. Eventually IT called C, but she was engaged in safety critical work, which she prioritised, and did not answer the phone. TC aggressively told C to answer the phone in a raised voice. He did not speak to or treat male colleagues in this way. 26 In around November 2017. Direct sex discrimination and R leaked C's grievance in breach of confidentiality owed to her. n/a Marc Ellix, HM, GB. n/a It is acknowledged that the fact of the Claimant's victimisation. grievance was shared by Marc Ellix with Paul Kemp and MB (both Area Council representatives for the RMT). However, this was a mistaken attempt to provide the Claimant with support from her trade union representatives before Mr Ellix was aware that both Mr Kemp and GB were implicated in the Claimant's grievance. 27 On or before 15.07.18. Direct sex discrimination and Paul Kemp drafted a template grievance letter for the use of n/a Paul Kemp. MB. It is admitted that a template grievance was victimisation. colleagues who C had complained about and emailed this to submitted however this does not constitute discrimination and/ or harassment because of sex. MB. 28 In or around July 2018. Direct sex discrimination and Mr Kemp sought to interfere with the proper running of the n/a Paul Kemp. n/a This is denied. The content of the Claimant's victimisation. investigation (see paragraph 17 of the Grounds of Complaint). grievance was not shared, the fact a grievance had been made was shared but the content of the grievance was not. 29 03.11.17 - 03.12.18. Direct sex discrimination and Katherine Styles failed to properly investigate C's grievances (see n/a Respondent / Katherine Styles. n/a Agreed this was upheld at appeal and a further victimisation. paragraph 21 of the Grounds of Complaint). hearing was convened. 30 03.11.17 - 03.12.18. Direct sex discrimination and Those interviewed during C's grievance investigation (apart from HM n/a Those interviewed during C's n/a This is denied. Those who were interviewed gave victimisation. (OM), Marc Ellix (LOM), IS (Deputy LOM), Steve Wigg (Signaller)and grievance investigation (apart from corroborating statements, if this does not support the Claimant's allegations it does not follow that Jim Emmerson (Signalling Tech Support)) "closed ranks" in that they those named under "Alleged they had "closed ranks" did not provide an honest and open account of C's treatment by Discriminatory Conduct"). colleagues. 31 After 08.03.19. Direct sex discrimination and Failure to investigate C's grievance dated 08.03.19 concerning Paul n/a Respondent. n/a Grievance hearing meeting notes on page 195 victimisation. Kemp's conduct. confirm that a grievance hearing for the 2019 grievance was held on 25.11.2019 32 Prior to Feb 2020. Direct sex discrimination and R deliberately withheld grievance interview minutes from C until n/a Respondent. There was no deliberate act by the Respondent to victimisation. forced to do so pursuant to a Freedom of Information request (and with hold information, as alleged or at all. even then full copies were not provided). 33 03.11.17 - 17.02.20 Direct sex discrimination and Refusal to interrogate the SSM computers (see paragraph 29 n/a Respondent / Katherine Styles / n/a IT checked computers – nothing of this nature was victimisation. of the Ground of Complaint). Peter Barron. found 34 17.02.20. Direct sex discrimination and Failure to properly address C's appeal (see paragraph 27 n/a Respondent / Peter Barron n/a This is denied. The Claimant's appeal was heard in victimisation. of the Grounds of Complaint). accordance with the Respondent's procedures. 26 In around Direct sex R leaked C's It is acknowledged C says cant say Ellilx did it because she was a woman. November discrimination grievance in that the fact of the 2017. and breach of Claimant's HM had a close relationship with the union. Clear in discussions with Mr Kemp in which Mr victimisation. confidentiality grievance was Kemp said HM told him C would not be able to return to work in Wimbledon. Ellix gave M a owed to her. shared by Marc broad outline of the grievance. Needed assurance and advice. Aware raised a grievance Ellix with Paul summary of broad comments, escalated to B, gave him copy of grievance of 6 November Kemp and MB provided copy. M knew on 5 November. No evidence to say HM, everyone knew details in (both Area Council short space of time, but can not say where the leak came from. Only victimisation in the representatives pleadings. P18.. Given the findings made, the leak may have been of a very general nature for the RMT). and given that the other people were party to them they would have known what it was However, this was about. No evidence actual letter was leaked. a mistaken attempt to provide the Claimant with support from her trade union representatives before Mr Ellix was aware that both Mr Kemp and GB were implicated in the Claimant's grievance. 27 On or Direct sex Paul Kemp It is admitted that Nothing in this allegation. Just gave blank template. Only victimisation in Pleadings. P18. before discrimination drafted a a template 15.07.18. and template grievance was victimisation. grievance submitted letter for the however this does use of not constitute colleagues discrimination who C had and/ or complained harassment about and because of sex. emailed this to MB. 28 In or Direct sex Mr Kemp This is denied. The Kemp believed investigation was finished. Never made contact with Styles. Narrow issue. around discrimination sought to content of the Wording used in emails indictive of the culture. Inappropriate terminology even allowing for July 2018. and interfere with Claimant's his particular use of language. This supports the culture in the organisations. He bothered victimisation. the proper grievance was not about what happening next and length of time. running of the shared, the fact a investigation grievance had (see paragraph been made was 17 of the shared but the Grounds of content of the Complaint). grievance was not. 29 03.11.17 - Direct sex Katherine Agreed this was Did fail not because of sex. Not experienced, out of depth. No real support from R. 03.12.18. discrimination Styles failed to upheld at appeal and properly and a further victimisation. investigate C's hearing was grievances (see convened. paragraph 21 of the Grounds of Complaint). 30 03.11.17 - Direct sex Those This is denied. Closing ranks. Because of leak likely did close ranks. Was this because she was a woman, or 03.12.18. discrimination interviewed Those who were backs against the wall. Tight group. V=difficult to say because of sex discrimination rather and during C's interviewed gave than a complaint only to protect their backs. Hence she switched union after her rep victimisation. grievance corroborating stopped communicating with her. investigation statements, if this (apart from does not support HM (OM), the Claimant's Marc Ellix allegations it does (LOM), IS not follow that (Deputy LOM), they had "closed Steve Wigg ranks" (Signaller)and Jim Emmerson (Signalling Tech Support)) "closed ranks" She RMT member, paid dues, not supporting her, let her down and the process down. in that they did not provide an honest and open account of C's treatment by colleagues. 31 After Direct sex Failure to Grievance hearing Not clear what meant refer to C 3rd grievance, no reference to Kemp save for leak. No 08.03.19. discrimination investigate C's meeting notes on mention of Kemp in meeting notes save for leak. Considered if it was warning Emerson off and grievance page 195 confirm via brother but grievance refers to emails so not that. victimisation. dated 08.03.19 that a grievance concerning hearing for the Paul Kemp's 2019 grievance conduct. was held on 25.11.2019 32 Prior to Direct sex R deliberately There was no Clearly should have been given., but were they deliberately. Incompetence? Did not show Feb 2020. discrimination withheld deliberate act by she should. Would be Styles and Barron. Baron thought KS had sent the information. KS and grievance the Respondent to given catalogue of mistakes in the investigation included to accept KS saying it was her victimisation. interview with hold mistake and not to do with SXD. minutes from C information, as until forced to alleged or at all. do so pursuant to a Freedom of Information request (and even then full copies were not provided). 33 03.11.17 - Direct sex Refusal to IT checked KS go the serial numbers, not understood by anyone which computers C talking about. 17.02.20 discrimination interrogate computers – Clearly she tried to interrogate them, discourse between IT and KS. May not be thorough and the SSM nothing of this enough but that is a different issue. victimisation. computers nature was found (see paragraph 29 of the Ground of Complaint). 34 17.02.20. Direct sex Failure to This is denied. The If wanted to brush under the carpet would have dismissed C appeal in the first instance. PB discrimination properly Claimant's appeal out of his depth. and address C's was heard in victimisation. appeal (see accordance with paragraph 27 the Respondent's of the procedures. Grounds of Complaint).
The evidence
The hearing
[1]This hearing was listed following the remission order made by the Employment Appeal Tribunal (“EAT”) of 1 August 2023. A hearing had been listed for 23 November 2023, however, this was postponed both because the Employment Judge was unwell and because direction was needed from the EAT about whether the remitted hearing should be allowed to have further witness evidence. This was raised because the Claimant provided two further witness statements from the Claimant and Mr Duarte, who was her union representative. The EAT said this was a matter for the Tribunal to determine.[2]The Respondent having examined the two witness statements did not have any objection to them being considered by the Tribunal. The Tribunal decided that it should allow the additional witness evidence. There was no request to cross examine the witnesses and therefore their statements were taken as read.[3]Both parties provided written submissions and there was a small bundle of documents comprising 67 pages.[4]The Tribunal comprised Employment Judge Martin and Ms Dengate only. Ms Omer, who was on the original panel, was unavoidably unable to attend. The parties consented in writing to Employment Judge Martin and Ms Dengate hearing the hearing today.[5]The terms of the remission order were “to consider afresh whether to grant a just and equitable extension of time in relation to complaints 1-25”. The Tribunal found complaints 1 – 25 to be out of time and that it was not just and equitable to extend time.[6]The errors the EAT identified were:35. Ground 2 raises a different challenge, being that the tribunal erred in concluding that, as a matter of law, in the absence of any evidence of the reason for the delay, it was bound to refuse to extend time. There was no dispute between Mr Holloway and Mr Kohanzad before us, that this is not the law, and neither counsel suggested to the tribunal that it was. Mr Holloway said that he regarded the point as clear law in light of the discussion in cases such as Morgan and Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23. In his written submission to the tribunal he wrote: “Although not a precursor to an extension of time, whether or not there is a good reason for a delay in bringing proceedings will be of particular relevance in determining whether to grant such an extension (as noted in Adedeji).”36. However, there is no statement of the law to that effect in the tribunal’s decision itself. Nor can we be confident that the tribunal would have regarded the point as familiar and settled law. In fact, for some years there were conflicting decisions of the EAT on the point. As recently as Concentrix CVG Intelligent Contact Limited v Obi [2022] EAT 149; [2023] ICR 1, it was contested again before the EAT, on the footing that neither Morgan not Adedeji had definitively settled the point. The EAT concluded in that case that there is no rule of law that, in the absence of any explanation in the evidence for the delay in presenting the claim, the tribunal is bound to refuse an extension (as opposed to treating this as a relevant consideration). But the decision in Obi was only given on 4 May 2022, in point of time after the tribunal heard submissions in the present case (and was not published until after the present tribunal gave its reserved decision).37. The fact that the tribunal did not address this particular point of law in its decision would not by itself necessarily mean that it got it wrong. But it began [74] by saying: “The Tribunal has reluctantly concluded that the claimant has provided no evidence on which it can exercise its discretion to extend time.” That reads like it was saying: “our hands are tied.” At the end of that paragraph, it concluded: “Without explanation from the Claimant, it is not possible for the Tribunal to extend time.” That again suggest that the tribunal wanted to convey that it would like to be able to give the claimant a remedy for the conduct that she was factually subjected to during her time at Wimbledon, most, if not all of which, it was likely, because of its nature, to find was unlawful; but that, because of the absence of that explanation, it was legally not possible for it do so.38. Ground 2 must therefore be upheld. 42. If extending time will in fact place a respondent at a disadvantage, it is not necessary also to show that the delay on the part of the claimant caused it. The issue here, however, was whether the respondent was in fact put at a disadvantage at all. The tribunal at [74] stated first that it accepted that the respondent chose not to call the witnesses and that was for the reasons earlier set out – plainly a refence to the letter mentioned at [3]. But it also referred further on to the inevitability that the passage of time would have affected the memories of the Wimbledon witnesses. It is not clear what it considered to be the impact of each of these things, or whether both made a contribution. 43. Given the nature of the issues, and the passage of time, we do not think that the tribunal erred in considering the fading of memories to be at least a potential consideration. But we conclude that its reasoning on this aspect is unsatisfactory and unclear. At the very least the tribunal needed to explain more clearly whether it concluded that the fact that the delay on the part of the claimant meant that the respondent had not been able to gather evidence sooner, may also have played, or did play, a part in the respondent’s decision not to call the witnesses, or some of them; or otherwise why, or how, it also took this aspect into account. For these reasons we also uphold this part of ground 3.[7]The judgment set out the following factual findings which are relevant to this remission. “69. Throughout the matters complained of the Claimant was a member of the RMT. She sought advice from the RMT from an early stage. She then sought advice from another union. The Claimant had union representation at the grievance hearing. The Claimant did not provide any information about why she delayed bringing her claim to the Tribunal. Waiting for an internal process to complete is not sufficient. There was no evidence adduced either by oral testimony or documentary evidence that the Claimant was unwell such that she was prevented from bringing a claim or any other reason given. It is not known what steps if any the Claimant took to obtain advice other than via her union”. 74. The Tribunal has reluctantly concluded that the Claimant has provided no evidence on which it can exercise its discretion to extend time. It accepts the submissions made by the Respondent that the Claimant must give some explanation. It is not sufficient for her representative to give reasons in submissions, this is not evidence. The Tribunal accepts that the Respondent chose not to call witnesses and the reasons for this are set out earlier in this judgment. However, this does not detract from the fact that the Claimant has not provided any explanation as to why she did not present her claim earlier. It is inevitable that the length of time between the allegations and the presentation of the claim will prejudice witnesses. For the Claimant, the matters were significant and memorable. For the other witnesses it is likely that the matters were not of significance given it appears that this type of behaviour had been common for some time. Without explanation from the Claimant, it is not possible for the Tribunal to extend time.” The witness evidence for this hearing[8]The Tribunal considered the witness evidence from the full merits hearing together with the additional witness statements prepared for this hearing. The Claimant’s witness statement[9]The Claimant’s statement for this hearing described how she was at the relevant times. She described herself as being very unwell and being signed of long term for anxiety and depression. She described being completely overwhelmed by what had happened. Raising a grievance was a big step for her to take and she described the support she received from MR Ellix, her manager who believed what she had said and were hopeful that the grievance process would support her grievances.[10]The Claimant describes putting her faith and effort into the grievance process and that her union and management told her it was the correct course of action. In this time, she was prescribed medication and say a psychotherapist every two weeks. She describes feeling insecure in her job and the events impacted not just her but her daughter as well.[11]The Claimant describes hanging on to every communications and having to react quickly to correspondence after periods of silence. This took over her life leading her to describe herself as in survival mode.[12]She was not told about going to a tribunal by any of her three union representatives or management and was told that following the grievance process is what she needed to do. Bringing a claim did not enter her mind during the grievance process. It was only when she received the appeal outcome on 17 February 2020 that she was advised to bring a claim. Mr Duarte’s witness statement[13]Mr Duarte confirmed that he was the Claimant’s union representative until he left the Respondent but that he kept in touch with the Claimant. He confirmed that he told the Claimant towards the end of the process that if she lost the appeal she should bring a claim to the Tribunal and that he told her she had three months from the appeal concluding to do so. He confirmed that this was the firs time he had discussed the possibility of bring a claim with the Claimant and as far as he was concerned no other representative had discussed the tribunal with the Claimant either. The Claimant’s submissions[14]The Claimant submitted that the Tribunal has a wide discretion about whether to extend time. It was submitted that the Claimant was very unwell and had ‘tunnel vision’ (Mr Kohanzed’s phraseology) wanting to resolve the matter internally and this can be a good reason for not bringing a claim in time. The Tribunal was referred to an extract from Harvey “…it is likely that any ill health or disability which is held to have caused or contributed to the reason for the claimant missing the primary time limit will be a relevant factor to weigh in the balance when considering whether to exercise the discretion to extend time. In Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298, [2010] IRLR 32 the Court of Appeal upheld an extension of time granted in a disability discrimination case where the claimant had given confused and misleading instructions to her solicitors with regard to the date when she decided not to return to work (which triggered the start date for the purpose of the DDA 1995 Sch 3 para 3) and the reason for this was her serious mental ill-health at the time.”[15]The Claimant submitted that the evidence in the Claimant’s witness statement about how she felt at the time, was not challenged. The Claimant was not told that she could bring a case to the Tribunal until the conclusion of the grievance process. This, it was submitted, should not go against the Claimant if her advisors were negligent. The Claimant’s focus was on going through the internal grievance procedure which she considered should be sufficient to answer her grievance. The grievance process took a very long time to complete which was no fault of the Claimant.[16]It was submitted that the discrimination the Claimant endured had a profound effect on her mental health and anxiety levels which meant she was unable to focus on anything but the grievance procedure. It was submitted that using the grievance procedure was a logical and rational approach.[17]The Claimant submitted that the Respondent would not be prejudiced. The Respondent had not called witnesses for reasons of operational convenience and safety critical reasons rather than because the witnesses were not able to recall the matters in dispute. Conversely it was submitted that the prejudice to the Claimant is immense as if time were not extended she would be deprived of any remedy for the discriminatory treatment she was subjected to. It was submitted that the Tribunal’s findings speak for themselves in that it upheld many factual matters, which the Respondent concedes are likely to amount to a breach of the Equality Act 2010.[18]It was submitted that the Claimant was acting reasonably in pursuing the grievance process as she did and she was actively engaging with it. She presented her claim quickly once the process had finished and she had been advised she could bring a claim.[19]The Claimant submitted that it was not necessary to categorise the reasons give by the Claimant for the delay into good or bad reasons, it is sufficient to consider if they were reasonable. The Respondent’s submissions[20]The Respondent submitted that the two additional statements from the Claimant and Mr Duarte do not change any of the factual findings made by the Tribunal in particular relating to her trade union membership and representation, wanting to wait for the internal process to complete, and that she does not assert she was too unwell to have presented her claim earlier1. 1 See paragraph 7[21]The Respondent submits that the assertion in her new statement that dealing with the grievance was so time-consuming and emotionally draining that she “could not and did not think past that” does not add much. The submissions say: “The reason put forward for this is that there were very lengthy delays during the course of the grievance and appeal where nothing happened; there was nothing to take up the Claimant’s time. The Claimant cannot both rely on a complete mental incapability to act (although her evidence does not go that far); while at the same time relying on a conscious decision to pursue a grievance and an appeal: in reality, it is clear from reading the whole of her New Statement, and that of Mr Duarte, that the reason for the delay from November 2017 until March 2020 was her choice to await the outcome of the grievance process.”[22]The Respondent does not say that it chose not to call witnesses because of fading memories but does submit that the length of the delay means that it is not wrong for the Tribunal to consider that memories would have faded in relation to the events in complaints 1 – 25.[23]The Respondent suggested that it would be prejudiced by the delay in bringing proceedings as the Tribunal has not made findings of discrimination (although factual findings have been made) and that further evidence would be adduced.[24]It was submitted that there was no good reason for the delay and that there was an absence of evidence to suggest ignorance of time limits or employment rights. This is no part of the Claimant evidence, and she does not suggest she did not know of her rights. It was said that if she did not know of these rights she would have said so, and that the inference to be drawn was that she was aware of her rights.[25]It was submitted that the Claimant did not say she was so unwell it prevented her from bringing her claim in time, and that this was a background matter and not something that affected her decision.[26]In relation to prejudice, whilst the Respondent did not submit that the memories of any potential witnesses was a relevant factor give the reason why they were not called, the Respondent did submit that the Claimant’s memory was affected by the delay in that she could not recall precise dates on which many events happened.[27]There was no medical evidence about why she says she was unable to bring a claim earlier, due to anxiety and depression.[28]It was submitted that there was an inconsistency of logic in the Claimant’s arguments. It was not logical to say there was conscious decision to pursue the grievance and appeal and an incapability to proceed because of mental illness.[29]If there was a remedy, then it was submitted, there was prejudice due to the delays as it would be very difficult to split off matters which related to the issues in complaints 1 – 25 and the grievance process which was found not to have been discriminatory. The Tribunal’s conclusions[30]In coming to its conclusions, the Tribunal considered the following case law which was referred to in the parties submissions:a. Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194b. Jones v Secretary of State for Health & Social Care [2024] EAT 2c. Adedeji v University Hospitals Birmingham NHS Foundation [2021] EWCA Civ 23d. Robinson v Post Office [2000] IRLR 804e. Apelogun-Gabriels v London Borough of Lambeth [2002] IRLR 116f. Wells Cathedral School Ltd v Souter UKEAT/0836/20g. Virdi v Commissioner of Police of the Metropolis [2007] IRLR 24h. Robinson v Bowskill UKEAT/0313/12[31]The Tribunal has considered various factors in considering whether to extend time on the basis that it is just and equitable to do so. It has put aside the reasoning in the previous judgment and has looked at matters afresh. These factors include the length of the delay, the reasons for the delay, the advice given to the Claimant, the effect of the delay, the merits and importantly, the balance of prejudice to the parties. The overriding consideration was whether a fair trial was possible given the delay in presenting the claim.[32]By any standards the length of the delay is substantial. The matters to which this hearing relates, occurred between 2015 and 2017. The Claimant went on sick leave on 26 May 2017. Her claim was presented on 4 June 2020. It is therefore about three years late. This is not determinative but is a factor to be considered.[33]The Tribunal understands that the events leading to this claim were very difficult for the Claimant and she went on sick leave in May 2017 with depression and anxiety. She says that she was advised and wanted to exhaust the internal processes first. She also says that it was not until after her appeal was refused that she was told that she could bring a claim. She says she then acted quickly to instruct a solicitor.[34]The Tribunal has used its lived and industrial experience to consider the Claimant’s state of health and how this may have impacted her decision to concentrate on the grievance process. She says she did not even think about going to a tribunal at that time. The Tribunal accepts what she says about how the events leading to this claim affected her.[35]The Respondent says that she was able to engage with the grievance process and therefore could have engaged in the tribunal process earlier. The Tribunal does not agree, especially given the advice that she had been given. The Tribunal accepts her evidence that she was not able to focus on anything else other than the grievance. The Respondent’s argument that there long periods of time where nothing happened in that process, and that therefore she had nothing to occupy herself such as would have prevented her form bring a claim is rejected on the basis that the Tribunal accepts that the Claimant, as she says, was focussed on the grievance and completing that internal process. Whilst there may have been times that there was no active involvement in the process, this does not mean that the Claimant’s mind was not fully occupied in the process. She was waiting for the “next step in the process, the next meeting or next correspondence I could not think past that”.[36]The Claimant was represented by her union, the RMT from an early stage however, on her evidence which was not challenged, the union advice was not to go to Tribunal before the grievance was exhausted. This was clearly wrong. Mr Duarte says that he thought the time limit would run from the conclusion of the process. The Tribunal finds that the Claimant took this in good faith and followed the union advice. Given this advice the Tribunal finds that it was reasonable for her to continue with the grievance process. She was clearly engaged in the process the delays as set out in the chronology fall squarely at the door of the Respondent. For example, in January 2018 she attended a grievance meeting, and it was not until 19 June 2018 that she had an outcome meeting. The grievance outcome was not provided in writing until 3 December 2018. The Claimant appealed on 18 February 2019 and the appeal outcome was not given until 10 February 2020. The Tribunal accepts that this length of time would have put additional pressures on the Claimant and exacerbated how she felt.[37]The Claimant, in her additional witness statement says that she was too ill to concentrate on anything more than the grievance. This is covered to some degree in her original witness statement as set out in her submissions. She says she was on medication and received counselling. There is no medical evidence before the Tribunal which describes how she was at that time the only information is her evidence and evidence that she was on long term sick leave from May 2017. The Respondent points to this and says that the Claimant’s ill health was a background to her decision to continue with the grievance process first. The Tribunal accepts that it was inevitable that she would be anxious about matters. It has no reason to disbelieve the Clamant when she says she was unwell. Whilst the Respondent says that there was no medical evidence to support this, she was not directly challenged on it. The Tribunal has both lived and industrial experience of mental health issues and can see how the Claimant would be impacted not only by what happened but also by the significant delays in completing the grievance process.[38]As the Tribunal noted in its judgment it is inevitable that a delay of around three years would impact the Respondent witnesses ability to recollect events with clarity. The Tribunal is aware of the reasons why the Respondent chose not to call witnesses in relation to complaints 1 – 25, and that these reasons were not to do with difficulties in remembering events, but for operational reasons. It follows therefore, that even had the Claimant presented her claim within the time limit, or at least earlier than she did, that the same operational reasons would have existed, and the Respondent would not have called any witnesses in relation to these events. This was not disputed by the Respondent.[39]The Respondent did submit that there would be prejudice as further evidence was needed to be given for liability and that the remedy would be difficult to assess given that the remedy was only for complaints 1 – 25 and not for the grievance process. It was submitted it would be difficult to disentangle these two things. The Tribunal does not agree. First, there will be no additional evidence on liability. The findings of fact are set out in the judgment. Second, even if the remedy is complicated, the Tribunal is used to dealing with such matters and there is contemporaneous documentation available for example her grievance which shows how she was feeling.[40]Given the extent of the delay in presenting the claim, there is inevitably prejudice to each side. However, given the Respondent’s stance in deciding not to call witnesses for operational reasons, the Tribunal finds that the prejudice of not extending time would fall heavily on the Claimant.[41]The prejudice to the Claimant is obvious. If time were not extended she would not receive a remedy. The Tribunal has made clear findings of fact. Considering this again, the Tribunal is of the view that whilst the length of the delay is substantial, it did not have much of a prejudicial effect on the Respondent. Balancing it up, the Tribunal finds the balance of prejudice is in favour of the Claimant.[42]Turning to the merits of the claim, this is not a preliminary hearing it was a final hearing at which the Respondent was given the opportunity to present evidence. The Tribunal has made its factual findings on the evidence before it.[43]Not one factor is determinative. The Tribunal considers that all factors are relevant and they all played a part in it’s decision that it is just and equitable to extend time for presentation of the claim. The Tribunal will now list a oneday hearing to complete the liability stage. The parties will be notified in due course of the date. Interest is agreed at 8%.[45]The calculation for interest is: Start date for calculation: 5 November 2011 Date calculation made: 18 July 2025 Number of days: 3,544 Midpoint 1,772 days £35,000 x 8% = £2,800£2,800 / 365 = £7.67£7.67 x 1,772 = £13,591.24 Total interest £13,591.24 Therapy costs[46]The Claimant claims compensation for therapy costs incurred because of the discrimination in the sum of £14,140[47]In principle, the Respondent had no objection to the Tribunal ordering a sum to compensate the Claimant for her out-of-pocket expenses relating to psychotherapy treatment.[48]However, the Respondent submitted it was concerned that the email evidence from the Claimant’s psychotherapist covers 7.5 years’ psychotherapy beginning in January 2018; whereas the acts of discrimination (as found by the Tribunal) ended at some time before May 2017 and were soon superseded by other events, beginning with allegation 26 in November 2017, which have seriously affected Claimant‘s mental health but which have been found not to amount to discrimination. The Respondent was also concerned about the lack of invoices provided by the Claimant.[49]The Respondent considers that the therapy which started in January 2018 after the grievance had been sent by the Claimant relates to the stresses of the grievance process which the Tribunal found not to be discriminatory rather than to the acts the Tribunal found to be discriminatory.[50]The Claimant submitted that the Respondent chose not to cross examine the Claimant so even though there are no invoices, the Claimant is credible and referred to the Respondent’s witnesses saying they considered the Claimant to be credible during the liability hearing. The Tribunal found the Claimant to be credible and there is no reason to doubt her evidence. It was submitted by the Respondent, that the reason for therapy was to help her through the difficult grievance process, but the damage was done by the discrimination which predated this process.[51]The Tribunal accepts the Claimant’s submissions and finds that the Respondent should pay the therapy costs incurred by the Claimant. Utilising the same formula as in the personal injury case, the Tribunal has discounted 1/3 of the amount claimed on the basis that 2/3 of the reason or the need for therapy emanates from the discriminatory acts and the remaining 1/3 for other matters. The amount claimed is £14,140 and consequently the amount awarded for therapy costs is £9,427.66. Approved by
The hearing
[1]The unanimous judgment of the Tribunal is that the Claimant’s application for costs is successful.[2]The Respondent shall pay to the Claimant £36,669 towards her costs (50% of the costs claimed). RESERVED REASONS 1. Costs do not follow the event in employment tribunal proceedings, and an award of costs is the exception and not the rule (Lord Justice Mummery in Barnsley Metropolitan Borough Council v Yerrakalva 2012 IRLR 78). 2. The power to award costs is now contained in Rule 76 of the Employment Tribunal Rules of Procedure 2013 which provides that: 1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, 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) or the way that the proceedings (or part) have been conducted; or(b) any claim or response had no reasonable prospect of success.[3]The Court of Appeal held in Yerrakalva v Barnsley Metropolitan Borough Council [2011] EWCA Civ 1255 that the vital point in exercising the discretion to order costs is to look at the c[4]The Claimant made an application for costs by letter dated 17 June 2025. The Respondent responded to this. This followed a costs warning letter dated 11 March 2022: Your client’s witness evidence fails to deal with any of the allegations at 1-25 of the Scott Schedule, namely the alleged behaviour towards Ms Owen before she submitted her grievance. This is the majority of her claim. We note that your client did intend to call 22 witnesses, but this went down to 4. Presumably these witnesses (or some of them) would have addressed allegations 1-25 and as such it appears to be an intentional decision not to address these allegations. Regardless of your client’s intentions, which of course we do not know, your client has maintained a defence throughout this claim that it denies Ms Owen’s allegations of discrimination and harassment during the period prior to her grievance. As a result Ms Owen has been forced to incur significant legal fees, and put through a great deal of stress which has damaged her health, pursuing her claim. Your client is now proceeding to a hearing without any witness evidence to counter these allegations. In these circumstances, we consider that your client has acted unreasonably in running the defence, which has no reasonable prospects of success.[5]The Claimant’s application is that: a) The Respondent has acted unreasonably in its conduct of these proceedings (Rule 74(2)(a)); and / or b) The Respondent’s defence had no reasonable prospects of success (Rule 74(2)(b)). The letter applying for costs says:[9]The Claimant issued her claim on 4 June 2020. At that time the Respondent was aware of the allegations in the first part of the claim, and which individuals they related to, because the Claimant had repeatedly raised these during a grievance and appeal process that lasted from November 2017 to in a grievance raised in November 2017 to February 2020.[10]Therefore, on receipt of the claim in around June 2020 the Respondent was (or should have been) aware of which witnesses it would need to call to respond to the allegations and, presumably, the impact that calling these individuals to give evidence would have on the service at the Wimbledon Signal Centre.[11]Nevertheless the Respondent denied the Claimant’s claim in its entirety.[12]If, which is not accepted by the Claimant, the Respondent says that when the claim was received it was not aware of the witnesses it would need to call, these individuals were set out in the Scott Schedule sent to the Respondent on 16 April 2021.[13]The Respondent continued to defend the claim in full and on 9 December 2021 it applied to extend the length of the hearing to 20 days because it intended to call 22 witnesses.[14]However, on 11 March 2022 (three days before the hearing, which was due to start on 14 March 2022), as set out above, the Respondent confirmed that it was only going to call four witnesses, none of whom were giving evidence in relation to the first part of the claim.[15]On the same day (11 March 2022) we sent a costs warning to the Respondent (copy enclosed).[16]We aver that the Respondent would or should have known that it was unable to call witnesses in relation to the first part of the claim on receipt of the claim in around June 2020 or (if that is not accepted by the Tribunal) at the latest on receipt of the Scott Schedule in April 2021.[17]We aver that, consequently, by these dates the Respondent would or should have known that it had no reasonable prospects of defending the first part of the claim.[18]This is supported by the purported comments of the Respondent’s Counsel at the EAT hearing, that the Respondent was always going to lose the first part of the claim.[19]Despite this, the Respondent continued to defend the first part of the claim, causing the Claimant to incur significant unnecessary legal fees.[20]We aver that the Respondent’s defence to the first part of the claim had no reasonable prospects of success and that pursuing these defence amounted to unreasonable conduct. ……….[22]It is not possible to distinguish fees relating to the first and second parts of the claim. We advised on the as a whole and time was not recorded with reference to the different parts of the claim. We therefore propose that the Tribunal should award the Claimant 60% of the costs in the schedule (amounting to £44,003.35 + VAT) on the basis that the first part of the claim was the larger and more time-consuming part of the claim. 7. The Respondent’s submissions were set out in its response to the application for costs by letter dated 19 June 2025:[1]The statement at paragraph 6 of the costs application is wrong: the Claimant’s claim was rejected by the Tribunal at first instance on time limit grounds, involving an exercise of the Tribunal’s wide discretion as to whether or not to extend time.[2]The undisputed circumstances in which that first instance decision was made (and which informed the Respondent’s conduct in choosing to defend the claims in April 2022) included that(a) the claim was in fact out of time;(b) the burden of persuading the Tribunal to extend time lay with the Claimant; and(c) the Claimant had not advanced any evidence whatsoever about why she had delayed in issuing proceedings.[3]Even following the Claimant’s successful appeal in June 2023 (based on an unlawful exercise of the discretion whether to extend time), the decision whether to extend time was not made by the EAT, but was instead remitted to the Tribunal; precisely because it was a discretion to be exercised, and not a decision in respect of which there was only one possible outcome.[4]The fact that the Tribunal exercised the discretion in favour of the Claimant at the remitted hearing in February 2024 is wholly irrelevant to the reasonableness of the Respondent’s conduct back in early 2022, in defending the claim – because the position changed fundamentally in November 2023, when the Claimant applied to rely on new witness evidence dealing with her reasons for delay: precisely the evidence which she had not given at trial in April 2022.[5]Indeed the Tribunal may consider that the Claimant’s own decision to apply in November 2023 to rely on new witness evidence, about the reasons for her delay in issuing proceedings, supports the Respondent’s resistance to this costs application: the Respondent had a strong case for refusal of the discretion to extend time, and so the Claimant needed to file evidence, in order to improve her chances of persuading the Tribunal to extend time (which she duly did).[6]In summary, there was nothing unreasonable in the Respondent defending a claim which was out of time (in circumstances where the Claimant had adduced no relevant evidence on that jurisdictional issue) by seeking to persuade the Tribunal not to exercise its discretion.[7]In light of the above, it may be that the Tribunal does not need to consider the other submissions made in the costs application (relating to the Respondent’s reasons for not calling witnesses), but to the extent that those submissions may remain relevant, the Respondent is unsure what the Claimant is insinuating about the Respondent’s correspondence with the Tribunal in late 2021 and early 2022 about the availability of witnesses. For the avoidance of doubt, the correct chronology is that the Respondent intended to call relevant witnesses once identified by the Claimant; it made an application on 9 December 2021 to extend the length of the hearing, precisely because of its intention to call those witnesses; but then, later on, it amended its position (because the impact of the identified witnesses being out of the business later became clear).[8]It is denied that Counsel for the Respondent made any admission as to the Respondent's prospects in successfully defending any part of the claim (not least in light of the Claimant’s serious jurisdictional difficulties on time limits, as described above, at the point of trial in April 2022). The Tribunal’s decision on costs 8. As the basis for the cost’s application was that the Respondent knew it would not be able to defend the first part of the claim because of safety issues in the signal box, the Tribunal first considered this and when the Respondent knew or should have known that to call the required witnesses would cause operational difficulties. The Respondent says this was just days before the liability hearing. The Claimant says it would have known when it received the ET1 or at the latest when the Scott Schedule was served on 16 April 2021.[9]The Respondent says it looked at the available pool who could cover for those giving evidence and decided that the witness’s absence from work could not be covered. There was no evidence or indication that there was any difference to the pool just before the hearing or at any other time. The limitations to the pool such as sickness, not being fully trained identified by the Respondent do not lead the Tribunal to find that the pool would have been any different at whatever time the Respondent considered what witnesses it needed to call and the operational difficulties arising.[10]It was clear when the Scott Schedule was served the number, and the names of the people involved were identified. The Respondent should have realised at that time or shortly thereafter that may have operational difficulties in defending the claim. The Tribunal accepts that it was a big decision to decide not to call any witnesses in relation to items 1 – 25 and that it would have taken time for the Respondent to conclude that it would offer no evidence to these claims.[11]The Respondent is quite correct that given that the claims were potentially out of time it was right that they tested the time point. There are various ways that the time point could be dealt with even if there was a concession regarding 1 – 25. It could easily have been a conditional concession. For example, not defending the allegations but still arguing that the claims were out of time.[12]The Respondent submitted that it had a duty of care to its employees and that to have conceded items 1 – 25 would have unfairly tainted the individuals concerned who would not be able to defend themselves. The Tribunal considers that the Respondent also had a duty of care to the Claimant who was also its employee. The clear evidence was that during the grievance process the Respondent accepted the Claimant’s grievance and that the incidents had happened. It is difficult in this scenario to accept the Respondent’s argument that the individuals had not chance to defend themselves. They had, in the grievance process. Again, the concession could have been made not to offer evidence rather than to admit the incidents happened which would have shortened the Claimant’s cross examination and reduced the stress on her.[13]When in chambers the Tribunal had cause to look at the case management order made in February 2022 which had not been included in the hearing bundle. The reason was to see when witness statements were to be exchanged. When looking at this order the Tribunal saw that it recorded that the Respondent had withdrawn its application to extend time for the hearing so all its 20 witnesses could be called and confirmed it was calling only four witnesses. Therefore, contrary to the submissions made the Respondent had at that time made the decision not to defend the claim.[14]The parties were invited to make written submissions on this. Both parties accepted they had overlooked this and apologised.[15]It does seem strange that the Respondent left it as late as December 2021 to make an application to extend the length of the hearing to accommodate 22 witnesses given the date of the final hearing. The initial listing on any reckoning would not have been long enough to hear all witnesses. This is despite there being the usual case management hearing to discuss the claims and issues.[16]Once the Respondent decided it would not call its witnesses regarding allegations 1 – 25, whenever that was, it would have quite quickly have concluded that it was not able to defend allegations 1 – 25 except on the time point.[17]It is reasonable to expect that it would take some consideration and time to conclude it was not going to defend these aspects of the claim. The Tribunal recognises that the Respondent and its representatives may not have initially applied their minds to the question of the practicability of calling the witnesses to allegations 1 - 25. This is the nature of litigation. It is easy to say that the Respondent should have realised the problems of calling all witnesses at the time the Scott Schedule was served or within a reasonable time thereafter. However, experience tells us that this is not always considered in detail until relatively near the date of the hearing.[18]Of course, there were other options available to the Respondent in relation to the witnesses. For example, not all witnesses needed to be off work at the same time; the Tribunal is used to timetabling witnesses to take account of business needs; the hearing was conducted by video and no doubt arrangements could be made for video equipment to be available on site thus reducing the time signallers were away from work with only be one signaller away from work at any one time. It is not known whether the Respondent considered these options. In any event, the Respondent had in the grievance process accepted that the events at allegations 1 – 25 had taken place as the Claimant had said.[19]The Tribunal must consider whether the Respondent acted vexatiously, abusively, disruptively or otherwise unreasonably in the conduct of the proceedings and whether its defence had reasonable prospect of success. The Tribunal must consider the whole picture of what happened in the case and to ask whether there was unreasonable conduct in defending the case and in doing so, to identify the conduct, what was unreasonable about it and what effects it had. There does not have to be a precise causal link between the unreasonable conduct in question and the specific costs being claimed.[20]The Tribunal considers that it was unreasonable conduct for the Respondent not to have conceded that allegations 1 – 25 took place. The Respondent had upheld the Claimant’s grievance. It had decided to call no rebuttal evidence. This would have extended the Claimant’s cross examination exacerbating her distress and was unreasonable. The Tribunal notes the limitation issues which are relied on by the Respondent, however, as stated above it would have been reasonable to concede openly that the events too, place as described by the Claimant and still argue that they were out of time.[21]The Tribunal consequently find that costs should be awarded in these circumstances and that the circumstances of this case are the exception rather than the norm.[22]The Tribunal awards 50% of the total costs claimed in the sum of £36,669.00. Approved by: