Mrs N Henley v Kings Hill Parish Council: 2302675/2022 and 2303639/2023
EMPLOYMENT TRIBUNALS
Case No 2302675/2022, 2303639/2023
Between
Mrs N HenleyClaimantKings Hill Parish CouncilRespondent
Before
Employment Judge McLarenIn person for claimantMr. D Beemah (instructed by Counsel) for respondentDate 19 June 2024
REASONS
[1]The Respondent is the local Parish Council for the area of Kings Hill in Kent. The Claimant was employed by the Respondent from 14 April 2022 as a Deputy Clerk. The Claimant was dismissed on 13 July 2022. The respondent says that the claimant’s contract ended as she did not successfully complete her probationary period.[2]The claimant says that the reason her employment ended was because she raised a number of protected disclosures about in particular, Councillor Petty’s conduct. She brings a claim for whistleblowing detriment and for automatically unfair dismissal. We did not address these complaints as we determined we had no jurisdiction to do so as a preliminary point[3]The claimant also brings claims of direct sex discrimination and harassment relating to sex based on number of comments she states were made to her by Councillor Petty. While a jurisdiction point arose about these claims, we heard the evidence on this and considered jurisdiction as part of our deliberations at the end of the evidence.[4]Once the employment ended, the claimant raised a formal grievance in which she complained of discrimination. She states that she was subjected to a number of post-employment detriments following this complaint. Withdrawn/ conceded claims[5]The issues list contained claims for unlawful deductions and breach of contract. It was clarified at the outset of the hearing that the claimant has been paid the £678.47 backpay that she was claiming. This was her claim for unlawful deduction. We therefore dismissed this claim as withdrawn by the claimant.[6]The respondent accepted that the claimant’s contract provided that if her employment was terminated, including during probationary period, then the claimant was entitled to 4 weeks’ notice pay. The respondent accepted that the claimant had been paid only one week’s pay. The respondent therefore conceded liability for this claim which had been brought as a breach of contract claim and paid the sums owed. The claimant confirmed she had been paid the correct sum on the first day of the hearing.[7]As set out below we addressed the issue of time limits for the whistleblowing claims and found they were out of time. Evidence[8]For the respondent we heard evidence from Anthony Petty, Chair, Dion Bayley Former Admin Assistant / later Assistant Clerk, and Karen Bell, Clerk. For the claimant we heard evidence from Andrea Kilvington, former Councillor, Clive Henley, the claimant’s husband, Nicola Bishop and Tacye Blest, members of the public, as well as from the claimant herself.[9]We were provided with a bundle of 628 pages and an additional bundle of 18 pages. The respondent made an application to add further documents to this additional bundle. We agreed that in order for us to reach a decision we would benefit from the inclusion of three additional pages. These were an exchange of emails between Mrs. Kilvington and Ms. Vincent of 9 June 2022. The claimant asked us also to consider a report of 24 October 2023 from Kent Police. The respondent did not object and this was added to the bundle.[10]As the claimant had no time to consider these and to avoid delay, it was agreed that the claimant would be able to discuss these emails with the relevant witness during a break in her evidence.[11]We were also assisted by helpful submissions from both parties. For the respondent oral submissions were expanded by a written document. The findings of fact set out below were reached by the tribunal on a balance of probabilities, having considered all the evidence given by witnesses during the hearing, including the documents referred to by them, and taking into account the tribunal’s assessment of the witness evidence.[12]Only findings of fact relevant to the issues, and those necessary for the tribunal to determine, have been referred to in this judgement. It would not be necessary, and neither would it be proportionate, to determine each and every fact in dispute. If the tribunal has not referred to every document it has read and/or was taken to in the findings below, that does not mean it was not considered if it was referred to in the witness statements/evidence. Issues[13]The issues had been agreed between the parties at a preliminary hearing on 14 September 2023.The parties confirmed this was the case at the outset of this hearing. Two matters have been resolved, the claim for unlawful deductions and the breach of contract claim. The whistleblowing claims were determined as having been brought out of time and so those are not reflected in the list.[14]The agreed issues, with the removal of the whistleblowing claims and those matters that are agreed to have been settled or conceded, are as set out below. For convenience we have retained the original numbering of the list. F. DIRECT SEX DISCRIMINATION (S.13 EqA 2010)[19]Did Councillor Petty do the following:(a) Refer to C as “my project” (as particularised at paragraph 19(a) of the Amended PoC).(b) Refer to the Claimant and/or other staff members as “girls” or “my girls” (as particularised at paragraph 19(b) of the Amended PoC).(c) Send an email to C and others on or around 7 July 2022, in which he told C to “go girl” (as particularised at paragraph 19(c) of the Amended PoC).(d) Refer to C as “love” and tell C to “get me a coffee love” and “do this/that love” (as particularised at paragraph 19(d) of the Amended PoC).[20]If yes, was such treatment less favourable treatment by reference to a hypothetical comparator?[21]If yes, what was the reason for the treatment? Was it C’s sex? G. HARASSMENT RELATED TO SEX (S.26 EqA 2010)[22]Did Councillor Petty do the following:(a) Refer to C as “my project” (as particularised at paragraph 19(a) of the Amended PoC).(b) Refer to the Claimant and/or other staff members as “girls” or “my girls” (as particularised at paragraph 19(b) of the Amended PoC).(c) Send an email to C and others on or around 7 July 2022, in which he told C to “go girl” (as particularised at paragraph 19(c) of the Amended PoC).(d) Refer to C as “love” and tell C to “get me a coffee love” and “do this/that love” (as particularised at paragraph 19(d) of the Amended PoC).[23]If yes, was Councillor Petty’s conduct unwanted?[24]If yes, was the unwanted conduct related to C’s sex?[25]If yes, did the unwanted conduct have the purpose or effect of violating C’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment for her?[26]If yes, having regard to all the circumstances of the case and the perception of C, was it reasonable for the unwanted conduct to have that effect? H. VICTIMISATION (S.27 EqA 2010) Alleged protected acts[27]Did C do the following:(a) Submit a formal grievance in which she complained of discrimination on 14 July 2022 (as particularised at paragraph 11(a) of the second PoC, dated 13 July 2023).(b) State that she had been subjected to discrimination and sexism, and refer to the EqA 210, in a follow-up email on 17 July 2022 (as particularised at paragraph 11(b) of the second PoC, dated 13 July 2023).(c) Bring a claim under the EqA 2010 when she submitted her ET1 on 5 August 2022 (as particularised at paragraph 11(c) of the second PoC, dated 13 July 2023).[28]If yes, in each case, did C do a protected act pursuant to S.27(2) EqA 2010? Alleged detriments[29]Did R do the following:(a) By a letter dated 14 April 2023 (i) ban C from the community centre until the conclusion of her employment tribunal claim, (ii) prohibit C from telephoning the council office, and (iii) threaten C with legal proceedings under the Protection from Harassment Act 1977 (as particularised at paragraph 12(a) of the second PoC, dated 13 July 2023).(b) During a council meeting on 11 May 2023, publicly disparage C as a thief and openly discuss the fact that she had brought an employment tribunal claim (as particularised at paragraph 12(b) of the second PoC, dated 13 July 2023).[30]If yes, in each case, did the acts complained of amount to a detriment to C?[31]If yes, was C subjected to such detriment because she did one or more of the protected acts listed at paragraph 27 above?[32]Alternatively, was C subjected to such detriment because R believed she had done or may do a protected act? I. BURDEN OF PROOF (EQUALITY ACT 2010 CLAIMS)[33]Are there facts from which the Tribunal could, in the absence of an adequate explanation, conclude that R has discriminated against, harassed or victimised C?[34]If so, can R show that its treatment of C was in so sense whatsoever because of or related to a protected characteristic or protected act? J. TIME LIMITS (DISCRIMINATION CLAIMS)[35]Allowing for any period of time where ‘the clock was stopped’ on account of Early Conciliation, did C bring her claims within the time limit specified by S.123(1) EqA 2010?[36]If any of C’s claims are out of time, do they form part of a continuing act (“conduct extending over a period”), pursuant to S.123(3) EqA 2010?[37]If yes, on what date did the continuing act end?[38]If any of C’s claims are out of time, would it be just and/or equitable to extend time? If yes, by what period?[39]Should any of C’s claims be dismissed because they are out of time? ……….. N. REMEDY 55. If C succeeds with some or all of her complaints, what should her remedy be? Application on time limits 15. The issues list contained questions as to whether the applicable time limits had been met in relation to the whistleblowing detriment and whistleblowing dismissal claims. This was set out as follows, again retaining the original numbering. C. TIME LIMIT (WHISTLEBLOWING DETRIMENT CLAIMS) 7. Allowing for any period of time where ‘the clock was stopped’ on account of Early Conciliation, did C bring her claims within the time limit specified byS.48(3)(a) ERA1996? 8. If any of C’s claims are out of time, do they form part of a series of similar acts or failures, pursuant to S.48(3)(a) ERA 1996? 9. If yes, was the last act or failure in the series in time? 10. If any of C’s claims are out of time, would it have been reasonably practicable for her to have brought those claims in time? 11 Per S.48(3)(b) ERA 1996, if it was not reasonably practicable for C to have brought any of her claims in time, within what further period should C have reasonably brought those claims? 12. Should any of C’s claims be dismissed because they are out of time? E. TIME LIMIT (AUTOMATIC UNFAIR DISMISSAL CLAIM) 15. Allowing for any period of time where ‘the clock was stopped’ on account of Early Conciliation, did C bring her claims within the time limit specified by S.111(2)(a) ERA 1996? 16. If C’s claim is out of time, would it have been reasonably practicable for her to have brought the claims in time? 17. Per S.111(2)(b) ERA 1996, if it was not reasonably practicable for C to have brought her claim in time, within what further period should C have reasonably brought the claim? 18. Should C’s claim be dismissed because it is out of time? 16. At the end of day two of the hearing the respondent made an application that we should deal with this as a separate and preliminary issue rather than hear al the evidence and then determine it. At the time the application was made counsel conceded that the same time point issues did not arise in relation to the Equality Act claims. This was incorrect, but Counsel did not identify this at the time and this aspect is dealt with separately. 17. At the time this application was made the claimant agreed that she would prefer the issue of time to be dealt with as a discrete issue at this point in the hearing. At the time she made this decision she had been cross-examined for a number of hours and she was also unwell. We therefore left the matter to be reconsidered in the morning. We advised the claimant that she was free to carry out such legal research as she was able to do overnight, although she should not discuss her evidence with anyone. 18. At the start of day three of the hearing the respondent’s Counsel confirmed that he wished to pursue his application for us to hear the time point as a discrete matter and to decide if possible. It was put to us that we must consider the public purse as well as the cost for both parties and a determination on the time point issue would significantly shorten the hearing. If we adopted this course, there would then be no difficulty in getting a decision within the days allocated rather than having to reserve and it would reduce the number of witnesses. 19. Having been given the opportunity to consider the matter overnight, the claimant advised us that she did not agree. Her strong preference was that she be able to cross examine all the respondent’s witnesses as she could prove that their evidence was incorrect. She also felt that she had not had the benefit of legal advice on this point and that, because she was in the middle of giving evidence when this application was made, she was prejudiced. 20. We considered the points made by both parties. The overriding objective of the employment tribunal requires us to deal with cases in ways which are proportionate to the complexity and importance of the issues, to avoid delay and to save expense. Dealing with the jurisdictional issue as a separate point during the hearing could significantly reduce the amount of tribunal time needed to hear the issues. If the application succeeded, we agree with Counsel that the case could be finished within the allotted time. If it were not determined or did not succeed it was inevitable that the case would be part heard. 21. We considered that the time point issue was clearly set out in the list of issues and therefore the claimant was always aware that this was a point that was likely to be put to her by the respondent. This was something she should have been prepared to address. This application only varied the point at which the tribunal were to consider it. If the claimant considered she needed legal advice to address it that was something she should have sought before the hearing began. We had confirmed to her that she was able to carry out legal research on the point and we note that she did so overnight. We also confirmed to her that, once she had given her evidence on the circumstances in relation to the time point, she was able to speak to whoever she wished to advise her on this point. We agreed a 1½ lunchtime adjournment to allow her to do so. Her wish to cross examine witnesses was not relevant to the point we had to consider. Witness evidence from the respondent’s witnesses would not address the time point. 22. For all of these reasons we decided to hear the application. Finding of facts on the relevant dates 23. Looking at the issues list itself; the dismissal took place on 13 July 2022. The complaint that this amounted to an automatically unfair dismissal was brought on 14 September 2023. 24. There are four acts of detriment relied on.(a) Fail to deal with C’s appeal(b) Councillor Petty told C that she was “starting to piss me off”(c) Councillor Petty told C that, “I’ve got rid of the last clerks, I can get rid of you any time I want to” and “the other councillors will just do anything I tell them to”(d) Dismiss C 25. Dealing with these in reverse order. Dismissal is not in itself a detriment that can be claimed. In any event, even if it were, that occurred on 13 July 2022. No dates have been given for when it is said the comments were made by Mr Petty at a and b above. They must have been made prior to the date of dismissal so on a most generous interpretation the relevant date would be 13 July 2022. 26. We must consider the relevant time period that applies to the failure to hear the claimant’s appeal. We were taken to a letter in the bundle written on 18 July 2022 from the respondent’s legal representatives. It states that there is no right of appeal. We are satisfied that the date of the act on which the appeal was refused was therefore 18 July 2022. 27. The date on which the amendments were considered was 14 September 2023. The claimant’s evidence 28. The claimant confirmed that she was advised by her trade union initially. She confirmed that she was advised by solicitors at the time at which she submitted claim 2. That claim made no reference to whistleblowing. She confirmed that she was aware that the case management orders contained issues on time limits. She explained, however, that she thought those were not relevant because she was clearly in time. She believed that all the facts and matters which raise a complaint of whistleblowing were in claim 1 and therefore in time. 29. The claimant confirmed that she instructed solicitors during the initial preparation of the witness statement. While the tribunal paperwork shows the solicitors coming off the record in early June, the claimant said that in fact they ceased to assist her in preparing her witness statement before she had finalised the last version. She accepted that at least the initial draft was, however, prepared with legal advice. 30. The claimant accepted that there was nothing in her witness statement as to why she said the claims were in time and therefore there was nothing about why it was not recently practicable for the claims to have been brought any earlier. She maintained her position that she did not know she needed to do this because she understood that the claims were in time and that they had been accepted as in time because they were in her original claim form. We note that is at odds with the update from her counsel that she read to us which we refer to below which made it clear time points are still an issue. Finding of facts leading to the amendment 31. The chronology of the matter, which was not disputed, was this. The claimant’s employment ended on 13 July 2022. The claimant brought claim number 230 2675/2022 on an ET1 that was received on 5 August 2022. We refer to this as claim 1. On its face that was a claim for discrimination on the grounds of marriage or civil partnership. The claimant had an ACAS certificate for this claim. The dates of ACAS early conciliation were the 22 to 25 July 2022. 32. The claimant brought a second claim under case number 2303639/2023 by an ET1 lodged on 13 July 2023. This related to victimisation. We refer to this as claim 2. That was supported by an ACAS certificate for the period of conciliation which started and finished on 27 June 2023. These two cases were consolidated by an Order made on 14 September 2023. 33. At the time claim 1 was filed the claimant was supported by her trade union representative. That is noted on the ET1. On 4 September 2023 the tribunal received correspondence from Ashford’s LLP confirming that they were instructed in relation to claim 1 and claim 2. These solicitors were already on the record as acting in relation to claim 2 and therefore the claimant was legally represented at some time on before 13 July 2023. 34. On 7 September 2023 the claimant’s solicitor made an application in relation to claim 1. This specified that the claimant had submitted an ET for claim1 without assistance from any legal representative. Ashford’s LLP having been instructed and having considered the ET 1 believed that it would assist the parties and the tribunal if an amended particulars of claim was prepared which “clearly particularised the claims and identified the relevant legislation more clearly”. An amended particulars of claim was provided. This provided that the claims were for whistleblowing detriment and dismissal, direct sex discrimination and harassment related to sex and claims for backpay, and notice pay. 35.The application letter went on to say “to the extent that the employment tribunal decide permission to amend is required, we submit an application in accordance with rule 29… And request an order for leave for the claimant to amend her claim to the attached amended particulars of claim.” 36. It was submitted in this letter that was no prejudice to the respondent because all the facts outlined in the attached particulars were closely related to the original claim. It was submitted and we agree that on its face the solicitor’s letter made the application in the alternative. Firstly, that this was merely a clarification of matters already pleaded, but in the alternative, this was an amendment application. 37. A preliminary hearing took place on 14 September 2023. The case management orders show that by consent the claimant was given permission to amend her particulars of claim in the form sent to the tribunal on 7 September. The hearing then also considered what were the relevant issues and a list of issues drafted by Mr Bheemah was annexed to that Order. This included jurisdictional questions of time-limits in relation to the detriment and dismissal claims. Respondent’s submissions 38. Mr Bheemah, who also represented the respondent at this preliminary hearing, confirmed that the amendment had been agreed subject to the time point still needing to be determined. He explained that reference had been made to the Galilee case and that was the basis on which the time points remained to be determined, despite the amendments having been agreed. It was his position that the new claims were accepted as an amendment and not a relabelling or a substitution. 39. The claimant was represented by counsel at the preliminary hearing. When Mr Bheemah made this point the claimant interjected and told us, via a note she had received from her counsel at that time which she read out to us, that this was the position. We understood her to confirm that her legal advisor had told her that the amendments were agreed subject to the time point to be determined, as the Issues list makes clear.[40]Counsel also directed us to a number of documents within the bundle. He reminded us that the claimant had been represented by solicitors by the time she had submitted claim 2 and that also made no reference to whistleblowing.[41]We were referred to a number of pieces of correspondence from 15 July to around 27 July 2022, sent shortly afterwards and up to a month after the claimant’s dismissal. Counsel submitted that in these the claimant demonstrated a knowledge of the law. There are references to the Equality Act. The claimant demonstrated a clear understanding about the two-year rule. The claimant cites up to 60 instances in the Employment Rights Act where two years is not required. It was submitted that this is evidence of the claimant being able to carry out legal research and inform herself of the position on employment rights.[42]It was also submitted that the claimant had made reference to illegal acts and to whistleblowing in these emails in 2022 and she used that phrase in the report submitted to the police on 14 April 2023. It was clear that illegal acts as whistleblowing were in her mind from the start, but they were not put in her claim form until the application was made to amend which was agreed in September 2023.[43]It was submitted that it was reasonably practicable for her to have brought a claim for whistleblowing within the appropriate time limit. Further she was represented by solicitors by the time claim 2 was submitted. Prior to that she was advised by her trade union and clearly was very able to carry out her own legal research. For these reasons we were invited to find that the claimant was able to research and inform herself of employment rights and she had relevant legal advice. If there was any error in that advice that was a matter that the claimant needed to address with those representatives. Incorrect legal advice does not make it not reasonably practicable to submit the appropriate claim.[44]If we were to find that it was not reasonably practicable for her to submit her claim initially, then we would need to consider whether the claim was submitted any such further reasonable period. It was Counsel’s submission that it certainly should have been submitted by the time that solicitors were on the record in July 2023, but it was not pursued as a claim and accepted as an amendment until 14 September 2023. The claimant’s submissions[45]The claimant’s submissions were the same as her evidence, in essence that her claims were not out of time for a number of reasons. We understand her main submission to be that the claims in dispute were not an amendment but had been accepted as a relabelling. She submitted that the time points were not an issue because what had been accepted was not an amendment, but an acknowledgement and clarification of her original claims. She told us that her lawyers had advised her that all her claims were in time.[46]She was supported in her view because she submitted that the whistleblowing complaint was set out in claim 1. She took us to parts of the ET1 for claim 1 which she said were matters that now appear in the issues list. In particular all of the detriments are referred to. A number of the protected disclosures are referred to. She submitted that whistleblowing was clear from the form because she states that she is going to report it and going to take it further. That is a whistleblowing statement.[47]While the claimant did not take us to it, we note that in part her ET1 she does specify that she is relying on two reasons for her dismissal. The first is her marital status and the second is “I was going to report Mr. Petty to the full council and the borough because actions are illegal”.[48]She also submitted that because her termination letter was illegal, and her grievance was still ongoing because the respondent had not dealt with it, that took matters up until at least the date of the amendment. Relevant law Amendment time limits
Relevant law
[49]The power to amend is a general case management power (Rule 29 of the 2013 Rules of Procedure) and is a judicial discretion to be exercised “in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions”: Selkent Bus Co v Moore [1996] IRLR 661.[50]Time limits should be considered where there are entirely new claims unconnected with the original claim as pleaded. We were referred to Galilee v Commissioner of Police of the Metropolis 2018 ICR 634, EAT, the Appeal Tribunal held that it is not always necessary to determine time points as part of the amendment application. It also held that granting an amendment does not automatically deprive the respondent of any limitation arguments it might have in relation to the new claims. In this case the Appeal Tribunal confirmed that amendments to pleadings in the employment tribunal which introduce new claims or causes of action take effect for the purposes of limitation at the time permission was given to amend. There is no doctrine of “relation back”. This case also concluded that it is not necessary to determine the time points as part of the amendment application.[51]The effect of this case is that the date on which the complaints are held have been made to the tribunal is the date on which the application to amend is granted. Time Limits “whistleblowing” detriment[52]A complaint that an employee has been dismissed for making a protected disclosure must be presented to the employment tribunal before the end of three months, beginning with the effective date of termination. S111 ERA 1996 says this (1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer. (2)Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal— (a)before the end of the period of three months beginning with the effective date of termination, or (b)within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.[53]Tribunals therefore have a discretion to extend the time limit for a reasonable period if the claimant can show that it was not reasonably practicable to present the claim in time.[54]A complaint that a worker has been subjected to a detriment for making a protected disclosure must be presented to an employment tribunal before the end of the period of three months, beginning with the date of the act or failure to act to which the complaint relates, or, where the act or failure to act is part of a series of similar acts, the last such act or failure to act,[55]S48 ERA 1996 provides the right to complain of detriment and sets (3) An employment tribunal shall not consider a complaint under this section unless it is presented— (a)before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or (b)within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. (4)For the purposes of subsection (3)— (a)where an act extends over a period, the “date of the act” means the last day of that period, and (b)a deliberate failure to act shall be treated as done when it was decided on; and in the absence of evidence establishing the contrary, an employer… Shall be taken to decide on a failure to act and he does an act inconsistent with doing the failed act, or if he has done no such inconsistent act, when the period expires within which he might reasonably be expected to do the failed act if it was to be done.[56]The employment tribunal will need to consider the point in time at which the alleged detriment is said to have occurred, not the point in time at which the disclosure or disclosures relied upon were made Canavan v Governing Body of St Edmund Campion Catholic School EAT 0187/13.[57]As with unfair dismissal, a tribunal has the power to extend the time limit for a reasonable period if it is satisfied that it was not reasonably practicable for the complaint to have been presented in time.[58]In both dismissal and detriment claims even if the tribunal decides that it was not reasonably practicable to present the claimant time that does not decide the issue in the claimant’s favour. The tribunal must go on to decide whether the claim was presented within such further time as the tribunal considers reasonable. Reasonably practicable[59]In considering the not reasonably practicable extension, the legislation should be given a liberal construction in favour of the employee. What is reasonably practicable is a question of fact for the employment tribunal. The burden of proving the presentation in time was not reasonably practicable rests on the claimant. The claimant must show precisely why it was that they did not present their complaint. If the claimant fails to argue that it was not reasonably practicable to present the claimant time tribunal will find that it was reasonably practicable.[60]The factors that can be considered will vary from case to case. However, the following may be relevant: The manner of, and reason for, dismissal. Whether the employer's conciliation machinery had been used. The substantial cause of the claimant's failure to comply with the time limit. Whether there was a physical impediment, such as illness or a postal strike. Whether and when the claimant knew of their rights. Whether the employer had misrepresented any relevant matter to the claimant. Whether the claimant had been advised by anyone and the nature of the advice given. Whether there was any substantial fault on the part of the claimant or their adviser which led to the failure to present the complaint in time.[61]If the claimant engages solicitors to act for them it will normally be presumed that it was reasonably practicable to present the claim in time and no extension will be granted. This is the principle set out in Dedman v British Building and Engineering Appliance Ltd 1974 ICR 53, CA.[62]The Court of Appeal affirmed the Dedman principle in Marks and Spencer plc v Williams-Ryan 2005 ICR 1293, CA. It remains the correct proposition of law derived from Dedman that where the employee has retained a solicitor to act for him or her and fails to meet the time limit because of the solicitor’s negligence, the solicitor’s fault will defeat any attempt to argue that it was not reasonably practicable to make a timely complaint to the tribunal.
Conclusion
[63]We conclude that the preliminary hearing accepted the updated particulars of claim as an amendment and not as a clarification of matters already pleaded. We conclude that the claimant’s legal team were putting forward a new claim in substitution for a claim of discrimination on marital status which could not succeed- based as it was on who the claimant was married to and not that she was married. We find the claimant’s legal team agreed this position at the preliminary hearing. While the claimant disputed this and told us she had been told her claims were in time that is not consistent with the facts as we have found them, and we do not agree.[64]We have reached this conclusion because that is consistent with the fact that the claimant’s solicitors made their application in the alternative. It is consistent with the information provided to us by Mr Bheemah and his recollection of events as to what was agreed with the claimant’s counsel. That recollection is consistent with the note from the claimant’s counsel which we have referred to. It is also consistent with the wording of the case management order, and the inclusion of time jurisdictional points in the agreed issues list. The time point would not arise if the Judge had determined that this was a substitution or relabelling. The respondent’s agreement, given on the basis that the Galilee case applied, is relevant when new claims or causes are added.[65]For all of these reasons we conclude that the complaints of whistleblowing had been accepted by all parties and the tribunal as an amendment. It was not accepted as substituting a new claim arising out of the same facts as the original claim, but instead as adding a new claim entirely unconnected with the original claim.[66]We are further supported in this view by looking at the claim form itself. We have considered the totality of the claim form. It is not in our view sufficient to allow the tribunal or the respondent to understand that the claimant intends to bring a whistleblowing claim to say that you’re going to take matters further. That is very far short of setting out any of the relevant legal issues. While there is reference to the events the claimant later described as detriments and there is reference to some of the matters which now form protected disclosures, when reading the claim form as a whole it is about discrimination on grounds of marital status. The claimant alludes to facts that she now characterises as whistleblowing, but they are not pleaded in that way.[67]We reach this conclusion, even though we note the claimant does state that there were two reasons for her dismissal. That second reason, that she is going to report an individual for illegal actions is not sufficient to identify a claim for whistleblowing. We conclude that this claim, while it is based in part on some of the same facts, does amount to a wholly new claim.[68]In any event, we conclude this point has already been dealt with by another Employment Judge. As we explained to the claimant, we are not able to reopen the question of whether the revised particulars of claim amounted to an amendment or clarification of an existing claim. It follows from this conclusion that as the whistleblowing was a new claim it is taken as being raised on the date the amendment was accepted.[69]The claimant has suggested that her appeal was in effect ongoing. We have found that the respondent refused to deal with it on 18 July. Applying the relevant law to that finding of fact we conclude that this is the date on which the respondent made it clear it was not going to act. That therefore is the date on which the detriment, if it amounted to a detriment, occurred. The fact that the claimant continued to ask for an appeal and believed that one should be given to her does not change that date.[70]Applying the relevant law, as the claims are brought by way of an amendment these complaints were first brought on 14 September 2023. That is on the date the amendment was agreed and not the date of claim1.The events complained of occurred on the 15 or 18 of July 2022. Even allowing for the ACAS extension they are considerably out of time.[71]We therefore concluded, as set out above that both of these claims are brought for the first time when the amendment is accepted on 14 September 2023. They are therefore on their face significantly out of time.[72]We remind ourselves that it is for the claimant to show why it was not reasonably practicable to bring the claims in time. Her witness statement is silent on the point. We are satisfied that the time point was still live after the case management hearing in September and was one that the claimant understood needed to be considered. Her witness statement therefore needed to address the time point. It did not do so.[73]The claimant was legally represented when the application to amend was made and also at case management hearing. She was legally represented, at least in part, while she was preparing her witness statement. We have found that her legal team agreed that these were an amendment, and no challenge was made by them to the case management order or to the list of issues. The time point was in the list of issues, and we would expect her legal team to address this in the witness statement. We do not find that the absence of this information supports the claimant’s contention that the claims were in time. If that were indeed the solicitor’s view as time was in the issues list the witness statement still needed to say why time was not an issue and it did not.[74]While it may be that the claimant did not understand that, applying the relevant law to our findings of fact, we conclude that any mistake as to the impact of the claims being brought as an amendment rather than a simple clarification of claims already brought, was one that a solicitor should reasonably have been able to address. If there was any error by a solicitor, and we are not making that finding, then that is a matter for the claimant to address with those solicitors. It is not something that the employment tribunal would consider as an exception to the Dedman principle.[75]We have then gone to consider whether from what we have heard, it was in fact reasonably practicable for the claimant to bring her claim in time.[76]We are satisfied that the claimant is a very able individual who has demonstrated a considerable ability to carry out detailed, timely and accurate legal research. She is clearly an articulate individual who is able to write detailed and lengthy emails and was able to do so from the moment her employment ended. She also had the benefit of trade union advice at the outset of claim 1. Her correspondence within the first month after her dismissal indicates that she was aware of and understood that she potentially had a whistleblowing claim. We find that she was advised. She knew of her rights. We have taken both these factors into account when reaching a decision.[77]We find that it was reasonably practicable to bring the claim within the initial time limit. We have therefore not gone on to consider whether there was any further time limit in which she should reasonably have submitted them.[78]It follows that the employment tribunal has no jurisdiction to hear the claims that relate to whistleblowing detriment. These claims are therefore dismissed. Consideration of time-limit on the discrimination claims[79]The issues list contained the following J. TIME LIMITS (DISCRIMINATION CLAIMS)35. Allowing for any period of time where ‘the clock was stopped’ on account of Early Conciliation, did C bring her claims within the time limit specified by S.123(1) EqA 2010?36. If any of C’s claims are out of time, do they form part of a continuing act (“conduct extending over a period”), pursuant to S.123(3) EqA 2010?37. If yes, on what date did the continuing act end?38. If any of C’s claims are out of time, would it be just and/or equitable to extend time? If yes, by what period?39. Should any of C’s claims be dismissed because they are out of time?[80]We did not address this as a preliminary point but at the end of the hearing when we had heard evidence on the discrimination allegations from both parties. Nonetheless it seemed appropriate to us to make the decision first as to whether we had jurisdiction to hear the matter before reaching any conclusions on findings of fact and any liability for this complaint. Relevant law on Time limit discrimination claim[81]S123 Equality Act provides that “….a complaint within section 120 may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable.[82]Previously, the EAT (British Coal v Keeble) suggested that in determining whether to exercise their discretion to allow the late submission of a discrimination claim, tribunals would be assisted by considering the factors listed in S.33(3) of the Limitation Act 1980.[83]That section deals with the exercise of discretion in civil courts in personal injury cases and requires the court to consider the prejudice which each party would suffer as a result of the decision reached, and to have regard to all the circumstances of the case, in particular: the length of, and reasons for, the delay; the extent to which the cogency of the evidence is likely to be affected by the delay; the extent to which the party sued has cooperated with any requests for information; the promptness with which the claimant acted once he or she knew of the facts giving rise to the cause of action; and the steps taken by the claimant to obtain appropriate advice once he or she knew of the possibility of taking action.[84]The Court of Appeal in Southwark London Borough Council v Afolabi 2003 ICR 800, CA, confirmed that, the checklist should be used as a guide. However, the Court went on to suggest that there are two factors which are almost always relevant when considering the exercise of any discretion whether to extend time: the length of, and reasons for, the delay; and whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).[85]In Abertawe Bro Morgannwg University Local Health Board v Morgan 2018 ICR 1194, CA, the Court of Appeal pointed to the fact that it was plain from the language used in S.123 Equality Act that it would be wrong to interpret it as if it contains such a list.[86]In Adedeji v University Hospitals Birmingham NHS Foundation [2021] EWCA Civ 23,[2021] ICR D5, the Court of Appeal repeated a caution against tribunals relying on the checklist of factors found in s 33 of the Limitation Act 1980). The Court of Appeal described that 'The best approach for a tribunal in considering the exercise of the discretion under s 123 (1) (b) 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”'. The parties’ submissions[87]The respondent submitted that it would not be just and/or equitable to extend time in respect of C’s complaints of direct discrimination and harassment. Written submissions were provided and set out below is an extract from these. “C has provided no evidence in respect of her failure to issue proceedings within the primary time limits – her witness statement is silent in that regard (a factor she appears to blame on her former solicitors). The Tribunal will be aware that the burden is on C to show that time should be extended, and that time limits are exercised strictly in employment cases. The exercise of discretion should be the exception, not the rule – and this is by no means an exceptional case. The Tribunal has already determined that it does not have jurisdiction to hear C’s whistleblowing claims because they are out of time. R submits that the Tribunal’s conclusions in respect of C’s whistleblowing claims apply equally to her complaints of direct sex discrimination and harassment – although it is, of course, accepted that a different legal test applies (just and equitable rather than reasonably practicable). In light of the findings already made by the Tribunal, R submits that it would not be just and/or equitable to extend time.”[88]The claimant also made submissions. She told us that we were incorrect in holding that the amendment had been agreed as bringing a wholly new claim. She told us that she had been informed by her Counsel that it had been agreed as a mere relabelling and that this had been discussed with Employment Judge Abbott. We note that this is a change of position from the information provided to us when considering the earlier time point.[89]She also told us that her claims for direct discrimination and harassment were already in her claim form. There was therefore no question of an amendment. The Galilee time point was irrelevant as all that had occurred was a relabelling of facts and matters already pleaded in accordance with the Presidential Guidance. The claim form[90]We considered the points the claimant made about the claim form. This is a multipage document, and it does contain some references that could relate to the discrimination complaints. For example, it sets out that “He informed me he was my friend, and I was “his project” a term I found really humiliating. Making me his project was objectifying me in a sexist way was unprofessional and unethical”.[91]There is no mention of any comments about “girls” or about being called “love”. As we have previously concluded, when you look at the claim form as a whole the claim that is brought is discrimination on the basis of marital status. We find that the claim form does not foreshadow a claim for direct determination or harassment. Conclusion[92]We have already made findings of fact as to whether Employment Judge Abbott accepted the amendments as a relabelling or substantive new courses of action. Again, we are supported in this by our own findings that the claim form does not contain this claim. We have set out in our decision in relation to the whistleblowing time point the reasons why we have reached this conclusion. We do not repeat those.[93]We then gone to consider whether it would be just and equitable in all the circumstances to extend time. We reach the same conclusion. We are satisfied that the claimant is a very able individual who has demonstrated a considerable ability to carry out detailed, timely and accurate legal research. She is clearly an articulate individual who is able to write detailed and lengthy emails and was able to do so from the moment her employment ended. She also had the benefit of trade union advice at the outset of claim 1.[94]We note that her undisputed evidence was that she raised the question of sexist language prior to the termination of employment in a conversation with another Councillor. She was therefore aware of the possibility of this claim before her employment ended. She did not act promptly in bringing a claim of which she was aware.[95]There is a considerable delay in raising this claim of some 18 months. There is no good reason given for doing so other than the claimant considers, on our findings incorrectly, that the claims had already been raised. Her recourse is with her legal advisers. For these reasons we conclude it would not be just and equitable to extend time. The tribunal therefore has no jurisdiction to consider these claims of direct discrimination or harassment.[96]We therefore deal only with the post termination victimisation issues in findings of fact set out below. Finding of Facts Post termination victimisation (Issue H) The alleged protected acts[97]It is common ground that after the claimant was told her employment was ended, she submitted a formal grievance on 14 July 2022 which complained of discrimination. That expressly raises a complaint about the sexist remarks made by Mr Petty. It concludes that the claimant has been subjected to discrimination, intimidation, bullying, humiliation.[98]In an email of 15 July 2022 headed “appeal follow-up communication” the claimant made reference to the Equalities Act 2010 and advised the recipients of the email to appraise themselves of that before making more mistakes. In an email of 17 July 2022, the claimant stated that due to the discrimination, sexism, aggression, bullying and harassment she had suffered the day one employment rule applies and supersedes the basic twoyear employment law. She also stated that the Equality Act and Harassment Act will come into play. On 5 August 2022 she filed an ET1 claim which at that time alleged discrimination on grounds of marital status.[99]We are satisfied that each of the matters on which the claimant relies were occasions where the claimant expressly raised a complaint of some form of discrimination and that they are therefore protected acts.[100]While the claimant’s witness statement and the particulars of claim for claim 2 refer to numerous and varied acts of detrimental treatment by the respondent and/or Mr Petty, including posts to a Facebook group and complaints to the police, the issues list is limited to 4 acts of detriment. The claimant confirmed this at the outset of the hearing and again before this section of evidence was heard.[101]It was not disputed by the respondent that the events complained of as detriments amounted to such. The dispute was as to the reason why. Events leading up to the letter of 14 April 2023 (detriments a (i), (ii) and (iii)) The day of dismissal[102]On 13 July 2022 the claimant was told her employment was terminated without any warning that this was likely to happen. Indeed, we accept her evidence that she had been told previously that she had been doing a good job and had every expectation that she could be interviewed for the position of clerk.[103]Mr Henley came to the respondent’s offices that day to collect his wife, having presumably been told by her what had happened. Ms Bailey’s account is that when Mr Henley turned up at the office, he appeared to be absently furious. He was shouting “where is that cunt” and proceeded to barge through to the room where Mr Petty and Mr Mclymont were. Ms Bailey says that she heard Mr Henley threaten Councillor Petty by saying that he needs to be prepared for what is coming. Mr Henley then stormed back into the office with Mr McLymont trying to calm him down. The claimant and Mr Henley then left shortly after. Mr Petty also gave evidence about this event. He stated that he had no doubt that he would have been physically assaulted by Mr Henley if Mr McLymont was not in the room and he reported the matter to the police.[104]Mr Henley accepts that he may have used that language. He accepts that he said that Mr Petty needed to be prepared for what is coming. He does not accept that he was likely to physically assault Mr Petty. He does not view his words as a threat but as a warning which he sees as different. Mr Henley does not accept that he barged or stormed anywhere. Mr Henley did accept that he was upset by what had happened on that day as any husband would be concerned. He accepted that he can be rude but said that he was not threatening or aggressive.[105]We accept that Mr Petty notified the police. The claimant told us that the police took no action. She set this out in some detail in an email of 18 July 2022. In that she said “My husband enquired if anything had been alleged about what my husband said to TP when he collected me on 13th July. My husband said to TP “be prepared for what is coming" ie the appeal, the grievance, the Code of Conduct complaints and the Joint Standard Board Hearing into his misconduct. The police confirmed that nothing my husband said was a threat and nothing to do with them.”[106]On the balance of probabilities, we find that Mr Henley was angry when he arrived at the respondent’s offices and that he did “barge” through the central space and that he did use offensive language and that he did tell Mr Petty to prepare for what is coming. We find this could reasonably be held to be a threat rather than a simple warning. We find that it would be reasonable for office staff and for Mr Petty to feel intimidated by this occurrence. While the police considered it was not a matter that should involve them, nonetheless we accept Mr Petty’s evidence that he believed he had been threatened and that he and office staff were intimidated by this incident.[107]We also accept Mr Petty’s evidence that as far as he was concerned none of Mr Henley’s actions on this day were a factor in the decision to subsequently ban the claimant in April 2023. We understand that he was one of a number of councillors who made that decision. We find that if he did not have this in incident in his mind, on the balance of probabilities no one else did either. We conclude it was not relevant to the detriments of which the claimant complains. Further complaints by the respondent about Mr Henley up to 5 August 2022[108]Ms Bell also explained that between 13 July and 5 August 2022 a series of posts were uploaded to the Kingshill Facebook page which were vexatious in nature and in her view sought to tarnish the reputation of the respondent and its Councillors. She believed that these posts were made by the claimant or her husband.[109]The first of these related to what appears either to be a typographical error or a crude joke in a post asking for a local dog walker. Mr Henley explained that this was not a post on the Kingshill Facebook page which he edits, but a post in which dog walkers from the neighbouring parish were tagged. He accepts that he made a comment about this post which was that Ms Falzon-Thomas would be keen as mustard for this role. He told us that this was a joke, albeit in poor taste. There were 84 comments and 126 laughs about the same joke which he did not post. He gave evidence that he had repeated this comment in similar words to other dog walkers. It was not aimed at Ms Falzon-Thomas specifically. There were no other such comments in the bundle, but we accept Mr Henley’s evidence on the point. We also find that whether he made the same comment about other people or not, it would be reasonable for an individual named in this way to be offended at being named in connection with this post.[110]We note that on 2 July Ms Falzon Thomas sent a copy of these posts to Ms Bell stating that this was the lewd and deeply upsetting comment made by Mr Henley about her on the West Malling group Facebook. She sets out that it is insulting to her personally and to her profession. We find that Ms Bell accepted that Ms Falzon-Thomas was upset in the way that she set out.[111]In the same complaint made on 2 July Ms Falzon-Thomas told Mrs Bell that Mr Henley continue to follow her down roads and make a beeline for her to say sarcastic comments like oh hello Councillor and are you still a Councillor in an attempt to intimidate her or for a reaction.[112]Mr Henley said that he believed this related to an encounter with Ms Falzon-Thomas on 9 June. On his account this was after the planning transport and environment committee at which she had said she was going to resign. Mr Henley said that he was out walking his dog he passed Ms Falzon-Thomas and said good morning, Councillor, or are you still a Councillor referring to the fact that she may have resigned. This was not a hostile comment at all.[113]The claimant in her evidence confirmed that the police had attended at her house and asked to speak to Mr Henley as Mrs Falzon-Thomas had raised a complaint about this conversation. We find, therefore that whatever actually happened, Mr Petty and Ms Bell believed the matter to be serious and was a matter that they reported to the police.[114]Mr Henley accepted that he attended a council meeting on 23 June 2022 as a member of the public. He accepts that he was asked to leave. He denies that he was acting aggressively. He said he was reacting to what was going on the meeting which had descended into absolute carnage before he spoke at all. On his account there was a row between various councillors about the signing off of the AGAR document and Ms FalzonThomas tried to blame the claimant. At that point Mr Henley agrees that he stood up and said that they should all resign because they were all “fucking useless”. He accepts that he should not have sworn.[115]We were also referred to Facebook post made by Mr Henley on the group he edits on13 July. This criticised Mr Petty, stated that his conduct was illegal, set out that he had cocked up a meeting and that he couldn’t organise a legal piss up in a brewery. Mr Henley said that what he was saying was factual. He was entitled to report as editor of the group and there was nothing wrong with him saying this. The respondent is a public body and is open to public criticism.[116]The respondent put out its own post following this stating that Mr Henley was providing false or misinformation. We accept that the respondent took objection to this criticism of it as evidenced in this post in response. On 26 July Mr Henley emailed all the councillors about this and on Mr Petty’s account threatened that whoever was responsible would be held to account unless the post was taken down immediately.[117]Mr Henley accepts that on 20 July he posted a comment on the Facebook group that he edits which was critical of Mr Petty as he believed he was wasting £70,000 of parish money. He referred to it as Mr Petty pissing the money up the wall on building a bar in the community centre that was neither needed or financially viable. Mr Henley considers that this was legitimate criticism and was in the public interest. It is self-evidently critical of Mr Petty.[118]We were taken to a further social media post on the Kingshill resident site made by Mr Henley which regarded cancelling the school bus advising the public on how to raise complaints. This was agreed to have taken place in the week of 21 July 2022. It named Mrs Falzon-Thomas and was critical of her. Ms Falzon-Thomas reported this to the police. In that police report she identifies that this is a further act of harassment. Correspondence from the claimant up until 5 August 2022.[119]On 13 July, believing that she had been given that right in a termination letter, and believing that to be her legal right in any event, the claimant appealed against her dismissal. This letter contained 18 specific points. It included the claimant felt she had to endure constant harassment and berating by Mrs Falzon-Thomas.[120]On 14 July the claimant issued a formal grievance against Mr Petty and Ms Falzon-Thomas. The claimant agreed that her relationship with Ms Falzon-Thomas had broken down and believed that she was pushing to get the claimant sacked. The claimant confirmed that she believed that Mr Petty and Ms Falzon-Thomas had got together and decided that she was to be sacked. Despite this, the claimant said that she was more shocked than anything else by Ms Falzon-Thomas’s behaviour and that their sons were still friends.[121]The claimant was taken to a complaint raised by Ms Falzon-Thomas that on that day the claimant shouted abuse at Ms Falzon-Thomas when she drove past her. The claimant says this did not happen. This was raised with her by the police, but it was clearly rubbish. While Mr Petty was not present at the apparent incident, on the balance of probabilities we find that Mr Petty believed that something inappropriate had occurred, whether it did or not, and that led him to make a complaint to the police.[122]On 15 July the claimant wrote to all the councillors about her unanswered appeal communication. The claimant confirmed that she believed her appeal letter and grievance letter and her follow-up of 15 July were fairly firm, but they were not aggressive. She felt that she was simply trying to point out the legal rights and wrongs of the situation and to have things done correctly.[123]On 17 July the claimant contacted the respondent’s legal advisers. She made them aware of all communications that she had made up to that point and set out the main points of her concerns. We find that this was, one unusual step to take, an email written in a reasonable tone.[124]On the same date the claimant wrote to all the councillors again. In this email she refers to Mrs Falzon-Thomas as a proven liar. She refers to Mr Petty as a narcissist. She specifies that the entire corporate body will be liable for this conduct. When the claimant was asked if she felt that as an appropriate way to communicate whether or not it was rude or aggressive she said that she did not feel it was either rude, or aggressive. It was written from frustration. No one was listening to her, and it was correct that the corporate body as a whole would be liable for any unfair dismissal.[125]On 18 July the claimant wrote a further email to the Council headed illegal dismissal letter. In this she refers to a lying and deceitful individual. She said that Mr Petty was getting close to getting the corporate body involved in a criminal fraud investigation. The claimant accepted that this letter was quite rude. She explained that this was because she tried to raise issues in other ways, she had put in an appeal and grievance but had no reply at all.[126]On 21 July the claimant wrote again to the councillors raising concern about her money being withheld. She described this conduct as abhorrent and just the next step along the road for Mr Petty.[127]On 22 July 2022, the claimant agrees she telephoned Ms Usher about her pay and her dismissal. Ms Bell gave evidence that Ms Usher had told her she was deeply uncomfortable with this telephone call, and that she perceived the claimant's undertone to be threatening, so much so that she put the Claimant on speaker so that Ms Nicola Cooper, Bookings and Receptionist, in the office could listen. Ms Bell said that she was told that in this conversation the claimant told Ms Usher to process payment, that “he will take your job away next from you" (referring to Councillor Petty), and that she wanted Councillor Petty to be humiliated during the police investigation.[128]Ms Bell’s evidence was that she was informed by Ms Usher about this telephone call on 27 July 2022, after starting her employment with the Parish Council. She understood from speaking to Ms Usher after the event that the claimant was referring to the complaint submitted to Kent Police by Councillor Petty on 13 July 2022, regarding Mr Henley’s threat to physically assault him after terminating the Claimant's employment. We find that Ms Bell certainly believed this account of the events.[129]It is accepted that the claimant was sent three termination letters. She regards these letters as illegal and fabricated. On the same date, 21 July, the claimant contacted the respondent’s then legal representatives. In the first email sent at 10:03 AM she made references to Mr Petty realising his letter is illegal. She asked them to distance themselves from the respondent as a client. It ends asking “who do you think Mr Petty is going to blame for advising him to fabricate these two fraudulent letters? Have a think about this.”[130]The Director of Legal Services replied they did not consider that they’ve been involved in any sort of fraud. They advised her to correspond directly with the council. The claimant nonetheless replies again and states that she is disgusted as to why this organisation has chosen to be complicit in passing on fraudulent documents and peddling false advice. She states they will end up getting dragged into her employment tribunal, and criminal prosecutions. She will not hesitate to report this company to the SRA for breaching the code of conduct. The claimant accepts that she was being fairly aggressive at this point in this correspondence. It was not her finest hour, but at this point she felt that Mr Petty would continue to act unlawfully and that the law firm were involved in fabricating unlawful letters.[131]On 22 July 2022 the claimant then issued a formal grievance against Mr Petty and Mr McLymont. Against the second individual she stated that he had been complicit in writing an illegal dismissal letter, fabricating further letters and issuing payment payslips with illegal deductions and false information. She concluded that one councillor and two sidekicks were running the council without any legislation to back up their actions. The claimant did not accept that this grievance was rude. It merely said what was happening.[132]On the same day, 22 July, the claimant wrote to all the councillors asking if she could send transcripts of her recorded telephone conversations to all. The letter stated that they should step down and resign from the parish council before they suffered the humiliation of being forced out during the criminal conviction for fraud and misfeasance in public office. Her concluding paragraph refers to Mr Petty as having no place in public life. She states that he will end up in a second standard board hearing was the main aggressor in her employment tribunal action and will also face criminal investigation for his role in the fabrication and misfeasance. The claimant said that she felt that he was being criminal and acting unlawfully. She did not accept that this was an aggressive email.[133]On 25 July the claimant wrote again to the councillors telling the members they must get rid of Mr Petty who was making a mockery of the parish council and all of the corporate body. She concluded that the lack of action from the council to respond to her grievance increased the strength of her case and would ensure it was successful with a large compensation award. The claimant felt that this was quite rude, but it was because she had heard nothing, and they were just ignoring her. She had worked very hard, given up so much and the respondent had fabricated documents. She was simply trying to tell the other council members what was going on.[134]On 26 July some comments were posted on the Kingshill news and opinions Facebook page. This specified that “hell hath no fury than a woman scorned”. It specified that the claimant was a helpful puppet of her husband. It set out that Mrs Henley had been advised that she had not passed her probation and “then the shit hit the fan”. It described email after email being sent with the claimant demanding an appeal against the dismissal. It referred to unlawful recording of telephone conversations and that she had submitted grievances against various councillors. It also referred to the claimant’s son having been on the respondent’s payroll and specified the amount he had earned. It suggested that “before any more mud is thrown in the direction of Tony Petty, maybe the Henley’s need to consider their own actions, and lining their own pockets”.[135]The claimant was understandably angered about this post and sent an email on 27 July to all councillors. She described the reference to her son as harassment and disclosure of confidential information of a minor. She specified in her view publishing sensitive information about a minor is a very serious crime and would result in a police charge of child abuse and cyber bullying of a child and she would do everything her power to ensure that happened. The claimant concludes by saying that hopefully some of them will finally wake up and that she will see the parish council forced into a humiliating but justified public court case. The claimant accepts that this was quite aggressive because she was very angry at the Facebook post.[136]The claimant believes that this information about her son could only have come from the respondent, and it was they who posted this information about her child and made the comments about herself. Mrs Bell gave evidence that this was investigated. She gave no details of the nature of this investigation but said that no one had owned up to it from the council.[137]The claimant wrote a further email 28 July setting out what was said to be a list of issues which is growing by the day. In that she specified the police were investigating the social media post relating to her child and when proved it would result in charges affecting council members DBS and criminal records and if they were not bothered about that they should carry on doing nothing. The claimant feel this was not aggressive or threatening. She was frustrated after the social media post. She did say that she knew she had done a few emails that were a bit firm but the reaction from the respondent was just as bad.[138]By 27 July 2022 Mrs Bell had been engaged as clerk. The claimant contacted her on 2 August in what would appear to be a response to a communication from Mrs Bell. The claimant went through the list of issues and problems that she had with respondent. She stated that she had been advised by her union to prove lack of response from the clerk and unreasonable behaviour from the corporate body so that this could be added in evidence to her tribunal. She wished Mrs Bell a lot of luck saying she was going to need it. Mrs Bell gave evidence that she believed this comment was disingenuous. She was also offended by the reference to the clerk and additional evidence for the tribunal. She felt that this email had a threatening undertone.[139]Mrs Bell responded saying the council were trying to resolve the outstanding issues and acknowledging that it was an upsetting time. The claimant responded again thanking Mrs Bell for her reply and setting out details of how upset she had been about the social media post about her child. She made reference to Councillor Petty having spent an approved public funds changing the locks rather than paying her 12 hours pay that she was owed.[140]Mrs Bell told us that she took exception to these emails. She did not want to get involved in the dispute and she did not appreciate the fact that the claimant was giving details about her grievance. She felt this exchange of emails was threatening and had insulting undertones. She felt that they were sent to pressurise her to respond in an alternative manner and that they were to manipulate her to achieve another outcome. It was not right for her to comment on these matters and the claimant should not have been writing to her in this way. They were all in their own way threatening.[141]We find that what the claimant describes as “firm” language is on many occasions rude and aggressive. We accept the respondent’s view that the claimant had sent a number of threatening and abusive emails in the days following her dismissal. While we may not have shared Mrs Bell’s reaction to the emails she was sent, we accept that her evidence represents her genuine reaction at the time and that she felt insulted and threatened. Return of property[142]The parties dispute the issue of property. Mr Petty’s evidence was on 14 July he was advised by Ms Usher that the claimant had a credit card, keys to the building and office, paperwork including in relation to the Jubilee grant and a mobile phone. On 27 July he was told by Mrs Bell that the respondent’s laptop was also missing. Mr Petty said that shortly after 27 July the claimant was told that she had one month to surrender the respondent’s property.[143]The claimant says that she has never had a mobile phone. She provided proof that she had cut up the credit card. She believed that the laptop belonged to her and was asking the respondent for proof that it did not. She said that she would have returned the keys had they organised to collect them.[144]Whatever the rights and wrongs of this are, it is not disputed that the respondent reported the claimant to the police for theft of these items. It is also not disputed that the police did not take any action.[145]We accept Mrs Bell’s evidence that she reasonably believed that the claimant had taken items without authority. Mr Petty gave evidence that he believed the claimant had stolen these items. Even though the police did not take any action, he believed that was wrong. Letter of 5 August 2022[146]On 5 August 2022 Mrs Bell wrote to the Claimant with a restriction of communication letter. This provided that with immediate effect the respondent would only accept written letters from her sent by post and not communication any other format. This restriction would be for a period of six months, and it would be reviewed in January 2023. If communication received between the date the letter and January 2023 was of a vexatious nature, the respondent would have the right to block the claimant from all communications.[147]Mrs Bell confirmed that the reason for this restriction of communication was, as was identified in the letter itself, because of the claimant’s behaviour towards parish councillors, employees and the council itself as a statutory body. We find this was the reason this letter was sent. It does not mention allegations in relation to property and we find therefore that that was not in the mind of the respondent when this letter was written. This was a reaction to the claimant’s communication only.[148]It was Mrs Bell’s account that Mr Henley received an identical letter and was under the same ban. We accept that was the position as in January 2023 he asks if it has been lifted. Events after 5 August 2022 to 14 April 2023 Communication around backpay[149]On 4 January 2023 the claimant contacted Mrs Bell to request that a recent salary award be included in any pension contributions. Mrs Bell responded on this point. On 23 January she then wrote to the claimant to confirm that she was entitled to some backpay. 26 January Mrs Bell then told the claimant in writing that the respondent will be taking advice on the return of its property before releasing the funds to her.[150]Mrs Henley responded directly to Mrs Bell on 31 January. She set out her view that the respondent was persevering with an illogical inaccurate and illegal view that they could withhold monies from her property that she has not possessed of which they could not provide any documentary evidence to prove the contrary.[151]On 6 February Mrs Bell replied and the claimant sent a further email dated 9 February. In this she said that she was disappointed by Mrs Bell’s reaction but “sadly not surprised” and she concluded that she hoped that another councillor could help solve the key issue in a “more professional and civil manner”.[152]It appears that an arrangement was then put in place that Mrs Bell would collect the keys from the claimant’s house. In her evidence Mrs Bell said that she reflected on this. She had by this time been made aware that the claimant had recorded conversation she had had with Mr Petty during her employment. She did not want to go to the claimant’s house in those circumstances and another arrangement was made.[153]On 14 February, the claimant had still not having received payment of money she believed she was owed despite the fact she had returned equipment, and so she contacted Mrs Bell again. She requested that payment be made that week. This elicited a reply on 24 February in which Mrs Bell specifies to the claimant that the money is being withheld until they recover the laptop, the mobile phone and the cost of changing the locks.[154]The claimant responded on 27 February concluding that all the issues and illegal actions are being documented for the forthcoming employment tribunal. The claimant specified that she suggested that Mrs Bell gets her facts correct and obtains the necessary proof or cease the unsubstantiated allegations before the council ends up in court. Mrs Bell said that she considered this to be inappropriate, vexatious and malicious. It was an attempt to bully her and make a demand on the respondent when they were taking legal advice and seeking to rely on the contract that said they could withhold money if the claimant still had their property. This called into question the judgement she had made and the advice she gave her employer.[155]On 3 March the claimant issued a further formal grievance against the respondent which included a complaint that they were illegally withholding her money. In this grievance she specified that one councillor constantly making unilateral illegal decisions. The email criticised the clerk for failing to respond to requests for information about the ownership of the laptop. The claimant specified that the clerk was well aware of the legality of the situation but was being led by the chair instead of advising the corporate body.[156]Mrs Bell felt that this correspondence questioned her integrity and judgement. She considered the tone to be inappropriate and she took it personally. She felt it was aimed at her. The last sentence of the email was particularly insulting. She considered it bullying and harassing correspondence. On 24 March the claimant was told that her latest communications had been discussed with Kent police and on their advice all future communications from her should be made through her legal representatives.[157]It was also the respondent’s position that this correspondence was in breach of the existing order. The 5 August letter had said that the ban was for six months and would be reviewed thereafter. It was Mrs Bell’s evidence that this restriction was in place until it was positively communicated to the claimant that it was not in place. In other words, it did not expire after six months. It was to be reviewed and the claimant needed to be told that the outcome of the review was to remove it. The claimant disagreed and said this was not her understanding. This is at odds with her husband’s email on 2 January querying whether the ban had been lifted. He appeared to understand positive action was needed. We accept this was the respondent’s view of what the letter meant and on the balance of probabilities was also the claimant’s understanding.[158]We find that the respondent was reasonable in its conclusion that the claimant had not met the terms of the restriction of communications, and it reasonably viewed the correspondence from January onwards as a breach of an existing order. Ongoing police correspondence[159]On 9 January 2023 Mrs Bell contacted the Kent police again. In her email she stated that the intimidation, harassment and bullying by both the claimant and her husband was continuing. She said that since July last year the claimant and her husband had followed a vexatious, malicious campaign against the council that they had been dealing with ICO complaints, objection to the council’s audit, theft of council property, code of conduct complaints against councillors and an employment tribunal. They expected the claimant and her husband to receive a police interview.[160]Mrs Bell contacted the Kent police again on 12 January to update them that Mr Henley had visited the community centre that week. While he was entitled to do that, in this email she stated that staff still felt uncomfortable and intimidated by his presence so close to their workplace. Mrs Bell set out that she believed that Mr Henley was still posting bullying threatening and intimidating information on social media. She urged the police to act on this and what she believed was the outstanding theft of property issue.[161]On 19 January Mrs Bell sent an email to Mrs Falzon- Thomas and Mr Petty saying that she too believed that Mr Henley was continuing to harass and intimidate the council, its staff and its councillors. She set out that she considered that his appearance at the previous week’s meeting breached the vexatious communication order to which he was subject.[162]On 17 February Mrs Bell was in contact with the police again. It remained the respondent’s position that property had still not been returned. Mrs Bell complains about Mr Henley’s intention to stand for election. She specified that he was seriously damaging the Council’s reputation and is targeting the chairman and deputy chairman. Mrs Bell states that she is seriously worried for the well-being of the deputy chairman who has not attended the meeting for a couple of months for fear that Mr Henley will be in the audience.[163]Mrs Bell told us that they were still in contact with the police about the claimant and her husband. They did not consider the matter closed. They had in fact been advised by the police to log all matters that occurred, and some form of police action was still being considered at least as far as the respondent was concerned.[164]Mrs Bell also told us that insurers had advised that they had a duty of care to their staff and that they would not be insured if staff made a complaint arising from the actions of the claimant or her husband. No such document setting out this advice was disclosed by the respondent, despite our request for it. On the balance of probabilities, we find no such formal advice was given or it would have been produced as a key defence to the claim brought, but we accept that there was a general concern about staff welfare in Mrs Bell’s mind. Further actions by Mr Henley up to 14 April 2023[165]On 2 January 2024 Mr Henley contacted Mrs Bell asking her to forward his question on to councillors. He was asking whether or not restrictions on had been lifted. In that email he referred to having sat next to Mrs Bell and a colleague of hers at a conference. He said that they had a great chat and laughs with her and her friend. Mrs Bell said that that was not true. She had sat next to Mr Henley when she first arrived at this conference as there were no vacant seats. As soon as she realised it was him, she moved away and certainly did not have a chat or laugh with him. We find that what happened will be a matter of individual perception and that Mrs Bell could have given the impression to Mr Henley that all was well despite her actual discomfort.[166]It was agreed that on 6 January Mr Henley attended a parish council meeting. He confirmed that he was entitled to do so as a member of the public and he did not go to the respondent’s offices. He had not done so since the date of his wife’s dismissal. Mrs Bell told us that she found this email and its last sentence to be a further act of harassment and intimidation of the respondent. The respondent reported this to the police on 9 January as referred to above.[167]On 19 January 2020 Mrs Falzon-Thomas reported a further incident to Mrs Bell. She specified that Mr Henley had verbally harassed her that morning in the street while she was walking her dog. She perceived this as an unnecessary form of harassment and attempt to intimidate. She believed that this followed his attendance at a meeting the previous week when Mr Henley said that if she and Mr Petty did not stand down others would stand in May. She suggests that the latest outburst should be documented and reported to the lawyer dealing with the employment tribunal case as well as the police.[168]Sometime in April 2023 Mr Henley was elected as a councillor. On 6 April he attended a meeting. Mrs Bell says that at that meeting Mr Henley asked why she had not responded to his mail sent to her earlier that day. This made her feel uncomfortable. It appears there was a second interaction between them. The agenda contains reference to some ceiling tile damage. At the end of the meeting councillors left as Mr Henley had also left. He however came back in, and Mr Henley discussed this ceiling tile damage with Mrs Bell. Two councillors who had seen Mr Henley return also returned. They then escorted her back to the office and later escorted her back to the car. She found the remark Mr Henley had made questioning why should not responded to the email belittling and intimidating. On the face of it there appears to be nothing in Mr Henley’s conduct that would warrant such a reaction to feel the need for an escort. We accept that Mrs Bell’s knowledge of the history of interactions with Mr Henley as reported to her and as she experienced as set out above did mean that she was intimidated on this occasion, even when that would appear to be an overreaction to the specific event.[169]On 7 April Mr Henley then made an unannounced visit to the Parish Council offices. During this visit Mr Henley was less than complimentary about the Parish Council and its Councillors and made a comment that only 'some' of the Councillors were good at their role. Mr Henley believes this visit was to do with the ceiling tiles. Mrs Bell said that she found this visit intimidating and in breach of his restrictions. Letter of 14 April 2023[170]It is agreed that on 14 April 2023 Mrs Bell, acting on behalf the respondent, wrote to the claimant with a Restriction of Communication letter. This letter informed the Claimant that she was not permitted to enter the Parish Council’s Community Centre without a prior appointment. She was prohibited from telephoning the Council Office, other than through an agent (such as a solicitor or friend).[171]The Parish Council would only allow communication through one email address, to be confirmed. The Claimant was informed that the ban would take effect immediately and would remain in force until further notice and would be reviewed following conclusion of the police investigation into the missing laptop and mobile phone, and at the conclusion of the Employment Tribunal. The letter also threatened the claimant with proceedings under the protection from Harassment Act 1977.[172]Mrs Bell made it clear that she was not a decision-maker in this letter but that her understanding was that this ban was imposed because the respondent has a duty of care towards its employees. It was not done in response to the claimant's grievance or employment tribunal proceedings. The respondent simply was not in a position to tolerate any further unsolicited communications or visits to the Community Centre and simply wanted to provide a safe workplace for its councillors and employees, and venue for members of the public.[173]Mr Petty also told us he was not the decision maker. He was only one of the councillors who made this decision. In his mind nothing that Mr Henley had done contributed to the decision at all. While he had seen all of the claimant’s communication this was not part of his thinking either. He agreed with the decision to restrict access etc because he did not think the claimant was a trustworthy person. He believed that she had stolen the respondent’s property particularly the laptop and a mobile phone. While he accepted that, with the exception of the mobile phone which the claimant says she never had, by April 2023 all the property had been returned, nonetheless, he did not think the claimant was trustworthy and she should not therefore be allowed into the community space.[174]While we did not hear evidence from any of the other decision-makers we find that the clerk would have been instructed to represent the views of the respondent. While this is somewhat at odds with Mr Petty’s evidence, we find therefore that the reason for the claimant’s ban is that described in the letter and was her communication from January 2023 onwards and the actions attributed to Mr Henley.[175]We accept that the grievance and the employment tribunal proceedings were part of the matrix of facts underlying the position but, on the balance of probabilities, find that it was not the main or principal reason. 11 May 2023 Annual Parish Council meeting (detriment(a)(iii))[176]It was agreed that this meeting took place and was the first meeting of the new period following the 2023 election. Mr Henley told us that he as he had been elected and he received an invitation (and summons) to the meeting by the council clerk. He explained that when he arrived, there was already police in attendance, and he went inside the hall and sat down speaking to other members of the public.[177]Councillor Siobhan Kirk was talking with the other councillors right in front of the public where he was sitting. She stated that she wanted Mr Henley to leave, she said “you know why, your wife Nina Henley is accused of stealing a laptop so you can't be here”. She repeated it several times. Mr Heley said that Ms Kirk then went on to talk about the employment of the claimant and her son, discussing pay and employment details in front of the public, implying the claimant had acted dishonestly.[178]Following these comments, Mr Henley’s account was that Councillor Mike Hartman was acting in a very volatile and aggressive manner pushing a piece of paper in Mr Henley’s face, shouting “yes she’s talking to the council about unfair dismissal, so we’ve accused her of theft" Mr Henley told us that Councillor Neil Sherlaw then stood up and shouted at the members of the public.[179]On Mr. Henley’s account Mrs. Blest, who was sitting in the public area, said “come on, what on earth is going on here? Why can’t you just get on with the meeting”. Cllr Sherlaw then shouted in response “you don’t know the half of it Tacye, Clive has been banned because his wife is being done for theft”.[180]We heard evidence from Mrs Blest who confirmed that she saw Mike Hartman push a piece of paper into Mr Henley’s face. She confirmed that she heard Mr Hartman and Ms Kirk say repeatedly that Mr Henley was barred “because of your wife, Nina Henley”. She confirmed that she did feel she had to say something and said, “what on earth is going on, can we get on with the meeting.” She agrees that at this point Mr Sherlaw shouted at her “you don’t know the half of it, Clive has been barred and his wife is being done for theft.” She also confirmed that Mr Sherlaw shouted out that the claimant was taking the Council to employment tribunal for unfair dismissal and the claimant had been accused of theft.[181]We also heard evidence from Mrs Bishop. She also attended the same meeting and confirmed that information about the claimant having been accused of theft and her employment tribunal claim were discussed in public by the councillors.[182]On behalf of the respondent Ms Bailey gave evidence on this point. In her witness statement she said that she attended the meeting and did not recall the claimant being discussed in any capacity. She said the claimant’s employment tribunal claim was not discussed and the claimant was not publicly disparaged as a thief. Ms Bailey goes on to say, however, she was not present for any discussions prior to the parish council meeting starting. She was asked to go to a side room when Mr Henley arrived at the community centre. Her evidence cannot address the point.[183]Mr Henley confirmed that Ms Bailey was not present during these altercations which took place before the meeting started. Mr Petty was asked about this, and he also confirmed that he was not present before the start of the meeting. The respondent is not able to provide any evidence as to what happened at this meeting. We accept the accounts given by the claimant’s 3 witnesses.[184]We find therefore that statements were made about the claimant in front of members of the public. We find that the fact that the claimant had been accused of theft was discussed. The fact that she was taking the respondent to an employment tribunal was discussed. None of the other matters such as the correspondence, Facebook posts, harassment of Mrs Furzon-Thomas or the actions of Mr Henley were referred to.[185]Mr Petty told us that these two individuals, Mr Sherlaw and Mr Hartman were being sworn in as new councillors at that meeting and were not technically councillors at that point, although he also told us that the two individuals had been councillors previously. In looking at all of the correspondence sent by the claimant shortly after her termination which we have set out above neither of these two individuals are copied in. They don’t appear to be councillors until at the earliest 3 March 2023 when they are copied into the claimant’s formal grievance on that date. The other correspondence that the respondent complains of from January onwards was directed at the clerk and there is no reason to suppose these two individuals were aware of it. There is no reason to suppose that they were made aware of any conduct by Mr Henley.[186]We have been by Mr Petty that the decision made on 14 April followed may have followed a meeting. He could not recall. We don’t know, if such a meeting occurred, or, if it did whether Mr Hartman and Mr Sherlaw were present at that meeting. We don’t know if they were part of the decision to restrict access etc. We don’t know whether they knew about or had seen the respondent’s letter. We don’t know if they shared the view set out in it. It might be that, like Mr Petty, if they were part of the decision making, they had a different view and that if they were involved in any decision for them the decision to ban was based on other factors.[187]We find that we cannot attribute any knowledge of events prior to 3 March 2023 to either of them. There is no evidence about what they did or didn’t know or what was in their minds, other than the two points they chose to comment on at a public meeting. We find that we can only use the words they said to inform us as to what was in their minds. We therefore conclude that the disparaging comment they made accusing the claimant of theft was linked to the employment tribunal proceedings because it was those two “facts” they chose to share with members of the public. Application to adjourn the hearing[188]At the close of the respondent’s witness evidence on the sixth day of the tribunal hearing the respondent’s counsel made an application that the case be adjourned. He explained the basis of his application. It had become clear during the course of the respondent’s evidence that they had not provided any witnesses who could speak to the events of 11 May meeting. While they had called Ms Bailey for this reason, it had not been understood that the comments were said to have been made before the meeting and therefore that her evidence could not address this. The same point applied to Mr Petty. They would be able to call two councillors who were present at this part of the pre-meeting who could say what they had said.[189]Similarly, Mr Petty’s evidence as he gave it was clear that he was not the sole decision-maker, but one of 10 people who had implemented the ban on 14 April. They now wished to call four other people on this decision, two would be the same individuals who could address 11 May meeting, as well as two further councillors. It was submitted that it was in the interests of justice that the respondent be allowed to provide 4 new witnesses which would allow them to rebut the claimant’s contention. It was submitted that without that evidence the tribunal would have to find that the act of victimisation occurred on 11 May and there would be no evidence before the tribunal as to the mindset of the individuals who made these comments. Similarly, the tribunal would not have evidence of the mindset of the individuals who were involved in the decision to ban the claimant on 14 April.[190]Counsel also indicated that he had asked previously to bring one of these witnesses, but that application had been refused on the basis that it was not within the overriding objective to ensure the parties are on equal footing to expect an unrepresented claimant to cross-examine a new witness on the basis of oral evidence in chief. At the time this application was made it was not put on the basis that this witness was critical to address the victimisation issues.[191]It was submitted that matters such as the public purse, drain on resources and delay were overridden in the interests of justice. Further it might be possible to address part of these points by making a costs order or preparation time costs order in favour of the claimant. Relevant legal principles[192]The tribunal operates within the overriding objective. That is to deal with the case fairly and justly which includes, so far as is practicable in ensuring that the parties are an equal footing; dealing with cases in ways which are proportional to the complexity importance of the issue; avoiding unnecessary formality in seeking flexibility in the proceedings; avoiding delay, so far as compatible proper consideration of the issue; and saving expense.[193]We found no direct authority on the position being put to us. We have considered the ability to introduce new evidence at a later stage, namely on appeal or as part of a reconsideration.[194]The responsibility to ensure that relevant evidence is adduced means that a party cannot usually open up issues on appeal that were not raised by him or her during the tribunal proceedings( Hellyer Brothers Ltd v McLeod and ors and another 1987 ICR 526, CA.) Consequently, parties must endeavour to present their cases in a coherent way so that all the issues that arise are addressed and all evidence that is relevant to those issues is introduced at the right time.[195]Rule 70, which deals with reconsideration of judgments, allows the tribunal to reconsider any judgement where it is necessary in the interests of justice to do so. While decided under the old rules, the principle set out in Ladd v Marshall [1954] 1 WLR 1489 remains the same. To succeed on this ground the party making the application needs to show the new evidence could not have been obtained with reasonable diligence for use at the original tribunal hearing, was relevant and probably had an important influence on the hearing is apparently credible.
Conclusions
[196]While this is not a reconsideration application or an appeal, the difficulty of introducing new evidence that those stages confirms that we must consider this application with great care.[197]We conclude that the appropriate place to start is the overriding objective. We must consider ensuring the parties are on an equal footing. We understand the respondent feels it cannot put its case without these witnesses and so is prejudiced. Allowing in so many new witnesses at this stage would mean that the case would in effect start again. The claimant would have to reconsider matters and re-prepare her case. It might be that she would have put other matters to the respondent’s witnesses from whom we have already heard if she had been served with these proposed new statements.[198]To avoid prejudice against the parties if we were to allow this postponement and relisting, we might need to allow the claimant to call other witnesses. That is particularly the case in relation to the 11 May meeting. It is possible that her witnesses would also need to be cross-examined. It is possible that she would also wish to bring witnesses about the April ban letter. It may be that of the 10 Councillors we are now told took the decision, some were more sympathetic to the claimant, and she would wish them to give evidence on her behalf. This could mean that anything from a further 3- 5 days was required. That links to delay.[199]If this case were to be adjourned and relisted it would not be heard again before November 2025 if listed for three days. It is possible that five days would be needed. That may lead to a later date. Granting the adjournment would therefore cause significant delay.[200]Delay causes another issue of potential prejudice. That is the cogency of evidence. Memories do not get sharper with the passage of time. The respondent is now suggesting that it takes witness evidence from individuals about events which occurred in 2022. The passage of time since that event must pose a risk of difficulty of recall. We have been told by the respondent that there was no documentary evidence about the apparent meeting that took place to make the banning decision. There would be little to assist memory.[201]We considered saving expense. An adjournment would cause extra time and cost for both the public purse in terms of the employment tribunal and those of both parties. We note that the cost to the claimant could be alleviated to some extent by time preparation order. That might compensate her for time booked off work. That may therefore be a neutral factor.[202]Looking at matters in the round, we must deal with the case fairly and justly. We consider it is relevant to this aspect to consider why an application has been made to introduce a large amount of new evidence at this stage and whether that could have been reasonably avoided.[203]While we accept that counsel was not aware of the position, the respondent’s lawyers were able to talk to Mr. Petty. It seems to us that a simple enquiry as to who made the decision would have identified that he was one of 10 decision-makers. The respondent’s legal team took a detailed witness statement from Mr. Petty which stops chronologically on 3 March. That is before the acts of victimisation that complained of.[204]Those act of victimisation were set out in the issues list by 14 September 2023 and are well-known to both parties. No reason has been given as to why the respondent’s lawyers did not obtain written witness evidence from Mr. Petty, the individual they presented as the main witness in relation to the victimisation, about this aspect of the complaint. No reason has been given as to why they were unaware that he was not the sole decision-maker. We have been told very clearly by Mr. Petty what his role as chair is. He had no difficulty in volunteering this information. We find it more likely than not that had he been asked the question he would have expressed the same view to his own legal advisers. It would not have been difficult to discover what is said to be the position.[205]Again, we accept that counsel was not aware of the position, but the respondent would have been able to speak to those who are said to have made the comments at the 11 May meeting and have discovered the timing of those comments. They produced one witness, Mrs. Bailey, who on the face of her evidence said that she was not present for any discussions prior to the meeting starting. The respondents knew or ought to have known that this meant she was not a relevant witness to these events. Straightforward questions would have identified the point. The same applies to Mr. Petty who was also asked about this meeting but again was not present at the key time.[206]There was some suggestion that the respondent properly did not understand the time at which the meeting took place. We conclude the respondents were aware of the time point in around June or July 2022. The bundle contained a code of conduct complaint made to Tonbridge and Malling Borough Council. In that the respondent tries to argue that at the time of the events those making these comments are not Councillors. Mr. Petty was clear in his evidence that that would be the case prior to the meeting starting. We conclude that the respondent knew of the time of the comments in the summer of 2022. They therefore had the information about when the comments were said to have been made 3 years before this hearing. There was ample time to appreciate they had not provided any witness evidence to contradict the claimant’s 3 witnesses.[207]We conclude that with minimal diligence on the part of the respondent’s legal team these significant gaps in the respondent’s evidence would have been apparent well before this hearing started. We conclude that the respondent could and should have produced the relevant evidence that it needed at the time. There are no reasons given as to why it failed to do so and why it appeared only to notice the omission after extensive cross examination of the claimant and her witnesses and cross examination of the respondent’s witnesses.[208]We conclude that there is an element of fault on the respondent’s side so that we are where we are today. The respondent knew or ought to have known that they had these gaps in evidence and the potential impact of the burden of proof where no evidence is provided. While it is of course potentially unfair not to allow the respondent to produce relevant evidence, we have concluded that is through their own default. Even if the legal team had failed to notice the time point (in documents included in the bundle) Mr. Petty knew when the comments were made as he had been the person championing this point in the code of conduct complaint.[209]We conclude that the claimant will be prejudiced if this evidence were now allowed in. That prejudice includes the delay, the further time off work that she will need to take and the additional hours of preparation that she will need to do. We are dealing with a situation where the claimant has diligently prepared her case and addressed the case as the respondent has put it. We were also told that the claimant’s mental health has suffered, not just because of the events themselves but also because of the stress and strain of litigation. She told us that she is currently on medication and the prospect of extending the proceedings further is likely to have a detrimental effect on her mental health.[210]Balancing these matters and looking at the case in the round, we conclude that the application should be refused. We understand that from the respondent’s perspective that means they are unable to bring evidence on all of the acts of detriment as they would wish to do so. We conclude however, given it was their obligation to produce evidence and they knew or ought to have known that it was relevant many months ago, for all the reasons we have given the balance of unfairness is on the claimant if we were to allow this to happen now. Relevant Law and submissions[211]Victimisation is defined as (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)Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. (4)This section applies only where the person subjected to a detriment is an individual. (5)The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.[212]It follows from S.27(1) that a claimant seeking to establish victimisation must show two things: first, that he or she has been subjected to a detriment; and, secondly, that he or she was subjected to that detriment because of a protected act.[213]Former employees can claim victimisation under the EqA, (Onu v Akwiwu and anor; Taiwo v Olaigbe and anor 2014 ICR 571,) CA. A claim for post-employment victimisation will only succeed if it meets the conditions in S.108(1), which require that the impugned conduct ‘arises out of or is closely connected to’ the past employment relationship (S.108(1)(a)), and the conduct would, if it occurred during the relationship, contravene the EqA (S.108(1)(b)).[214]Victimisation claims under the Equality Act 2010 (EqA) are subject to the ‘shifting burden of proof’ set out in S.136 of the Act. This provides that the initial burden is on the claimant to prove facts from which the tribunal could decide, in the absence of any other explanation, that the respondent has contravened a provision of the Act (a ‘prima facie case’). The burden then passes or ‘shifts’ to the respondent to prove that discrimination did not occur. If the respondent is unable to do so, the tribunal is obliged to uphold the discrimination claim. Conclusion.[215]We have already identified our finding that we have no jurisdiction to deal with the claim for direct discrimination and harassment. The remaining issues therefore are the claims of victimisation. We have applied the relevant law as set out above to the findings of fact that we have made, and our conclusions are as follows. Victimisation[216]It was accepted by the respondent that the matters on which the claimant seeks to rely were capable of being protected disclosures. It was accepted that the matters the claimant raises as detriments would be detriments. The only issue in dispute is causation.[217]It is clear from our findings of fact that we have concluded that the letter 14 April was not linked to the protected act. We have found that the reasons for it were the claimant’s course of conduct and her husband’s conduct and the way in which the respondent reacted to both. The claim for victimisation in relation to detriment 1 to 3 does not succeed.[218]We have also made a finding of fact that the individuals who made the comment in the May meeting had the employment tribunal proceedings in their minds. We have no evidence to suggest anything else influenced their comments. While this may not have been the only thing of which they were aware, we find that the employment tribunal proceedings had a more than trivial influence on their decision. That is apparent from the words they used.[219]We conclude that the detriment the claimant complains of at the May meeting was because of her protected act in relation to bringing employment tribunal proceedings. The claim for victimisation in relation to the fourth act of detriment succeed. CORRECTED JUDGMENT Under the provisions of Rule 69, the Judgment dated 19 June 2024 is corrected by inserting the correct case number as set out above in bold. The unanimous decision of the Employment Tribunal is as follows: –
Conclusions
[1]The claim for unlawful deduction from wages is dismissed upon withdrawal by the claimant. The respondent has paid the sum owed.[2]The claim for breach of contract is dismissed upon withdrawal by the claimant. The respondent has paid the sum owed[3]The claims for detriment under s47 B ERA 1996 are dismissed. The tribunal has no jurisdiction to hear this claim as out of time[4]The claim for automatic unfair dismissal under s103A ERA 1996 is dismissed. The tribunal has no jurisdiction to hear this claim as out of time[5]The claims for direct discrimination and harassment are dismissed. The tribunal has no jurisdiction to hear these claim as out of time and it would not be just and equitable to extend time[6]The respondent did not contravene section 27 of the Equality Act 2010 in relation to detriments i - iii. This means that this claim does not succeed.[7]The respondent did contravene section 27 of the Equality Act 2010 in relation to detriment iv. This means that this claim succeeds.[8]A separate hearing will be listed to consider remedy Case No:2302675/2022 and 2303693/2023 2303639/2023 Employment Judge McLaren Dated: 19 June 2024 Date Corrected: 08 September 2024 Note Reasons for the judgment were given orally at the hearing. Written reasons will not be provided unless a party asked for them at the hearing or a party makes a written request within 14 days of the sending of this written record of the decision.
Conclusions
[1]The claimant’s point about the legality of the settlement was considered . Paragraph 64 and 65 summarises the 2 basis on which the claimant says the settlement was not lawful. The findings therefore did consider these facts.[2]The claimant states that if the settlement offers were not lawfully agreed upon they were not legally capable of acceptance and therefore the full hearing was the only available route. Paragraph 97 drew a conclusion on these points and found that matters of legality could be addressed, to the extent they were legitimate concerns, if the respondent was satisfied that there was a deal in principle. The claimant’s argument has already been considered and rejected on this point.. 3. .Paragraph 96 does not demonstrate an internal inconsistency. While it disputes the respondent’s reasons as to why Mr Henley was not included, that is not finding that it was unreasonable not to include him. There is a positive finding that the claimant was seeking resolution of the claims by including terms outside the tribunal’s jurisdiction which is unreasonable.[4]The claimant disputes that her rejection of the settlement was unreasonable. She refers to paragraph 99. This comment must be read in context. It relates to a consideration as to whether that admission of liability was in her mind as an important factor. It concludes that it was not.[5]The claimant suggests that because she ultimately succeeded in her claimant received a higher award and that costs should not be awarded. This is the point she made at the hearing and has already been considered. 11.6C Judgment – Reconsideration refused – claimant - rule 72 Case No: 2302675/2022 & 2303639/2023[6]The claimant makes a general point that a costs award is only justified in exceptional circumstances. The relevant principles already been considered in the decision.[7]The claimant challenges the tribunal’s assessment of her financial means and requests reconsideration on this basis. We made a finding that the claimant’s declared income is less than her declared outgoings and therefore she cannot be responsible for 50% of the shared outgoings. To that extent her husband’s income is a resource to her which reduces her outgoings. The claimant confirmed this was the position. That is not treating her husband’s income as a resource available for legal costs. It is evidence that the outgoings that she showed are not all for her account. The Tribunal therefore took her means into account to the extent it was able to assess these . We did not accept that she does have financial obligations exceeding her income.[8]The claimant complains that is unjust to expect her to use a compensation award for costs. In taking into account means to pay, as we felt it was appropriate to do so, it is reasonable to take into account all monies regardless of their source.