Employment Judge Rice-BirchallMr Robertson for claimantR1 no appearance for respondentDate 5 December 2024
JUDGMENT
The claim is struck out under Employment Tribunal Rule 37(1)(b) because the manner in which the proceedings have been conducted has been scandalous, unreasonable or vexatious.
REASONS
[1]This was a public preliminary hearing to address the following issues, as set out by EJ Chudleigh at a preliminary hearing on 21 March 2024:a. Whether the claimant was disabled at the material time namely between 7 July 2023 to 7 August 2023 within the meaning of the Equality Act 2020 (EqA). This will require the tribunal to consider: i. Did she have a physical or mental impairment: namely depression, depressive disorder panic attacks, and back impairment? ii. Did it have a substantial adverse effect on her ability to carry out day-to-day activities? iii. If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment? Case No: 2304116/2023 10.5 Reserved judgment with reasons – rule 62 March 2017 iv. Would the impairment have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures? v. Were the effects of the impairment long-term? The Tribunal will decide: did they last at least 12 months, or were they likely to last at least 12 months? If not, were they likely to recur?b. Whether the claimant an employee of any of the respondents within the meaning of section 83 of the EqA?c. If the claimant was not an employee any of the respondents, whether any of the complaints should be struck out (and in particular, the complaint about equal pay)?d. Whether all or any of the claimants claims should be struck out as having no reasonable prospect of success or alternative a deposit order made on the basis that all or any of the claims have little reasonable prospect of success?e. Case management for any future hearing.[2]By a letter to the parties dated 15 July 2024, EJ Leith confirmed that an additional ground for strike out, that the claimant’s conduct in the manner in which the proceedings are being conducted is unreasonable and vexatious, would also be considered at the preliminary hearing.[3]In the circumstances, and given that my decision was reserved on the issues a-d above, and on the issue set out at 2 above, it was agreed that there was no benefit in making further case management orders at this hearing. I decided to deal with the issue in paragraph 2 above first.[4]I mentioned at the outset that I had previously worked with Ms Kight but that I saw no need to recuse myself on that basis. No objection was raised by Mr Robertson. The claimant’s application for strike out[5]The claimant also made an application for the response to be struck out. This was included in the claimant’s submissions sent in on the morning of the preliminary hearing at 812am as follows: “The respondents and their representatives on 2 occasions also deliberately failed to comply with CMO and I have made an application to have their response strike out for non compliance, costs awarded in my favour due to the manner they have conducted themselves throughout the proceedings which is scandalous, vexatious and dishonest. (Sent this on 15.7.2024, 30.7.2024, 31.7.2024, 16.9.2024 to the attention of EJ Omar Khalil.”
The claim
[6]The claimant brought her claim on 7 August 2023 following a period of early conciliation between 22 and 25 July 2023.[7]Her claim relates entirely to a period commencing on 7 July 2023 when the claimant was assigned by Zoom Recruitment Limited to work at R3 as a warehouse administrator. She worked two shifts for R2, on 9 and 10 July 2023, and then was sick from 11 July 2023 and never returned to work. Case No: 2304116/2023 10.5 Reserved judgment with reasons – rule 62 March 2017[8]The claimant submitted a grievance to Zoom Recruitment Limited on 20 July 2023, copied to R2.[9]On 20 July 2023, R3 requested a DSE assessment for the claimant and also asked her to provide further information about the back support she said she needed.[10]On 21 July 2023, the claimant alleges that she made a disclosure to HSE/EHRC/ICO/Employment Tribunal alleging a failure to make reasonable adjustments. On 22 July 2023 the claimant alleges that she made a disclosure to the CEO of R3 and to ACAS. The claimant relies on these as “protected acts” in respect of the victimization complaint.[11]On 24 August 2023, the claimant’s employment was terminated.[12]It was acknowledged during the hearing that the claimant has presented at least 19 other claims to the employment tribunals. In fact, there are at least 23 publicly available judgments in relation to Tribunal claims brought by the claimant. The claimant is not recorded as having been successful in any complaint in any of those judgments. The most positive outcome revealed by any of them is, probably, the claimant persuading of the Tribunal not to strike out the whole of her claim. There are a further 62 claims recorded on the Tribunal’s case management system. Whilst the fact of the claimant pursuing so many claims unsuccessfully does not, of course, prove that the claims, or the claimant’s conduct of them, are vexatious, it is relevant to a consideration of whether the claimant’s conduct of this claim is vexatious, not least because it is evidence that the claimant has very considerable experience of Employment Tribunal proceedings.[13]The claimant is currently in receipt of universal credit. The issues in the claim[14]The issues in this case were set out by EJ Chudleigh in the Record Of A Preliminary Hearing of 21 March 2024. I do not repeat them here save to set out the heads of claim, namely: 1. Direct race discrimination 2. Harassment related to race 3. Equal pay against R3 4. Failure to make reasonable adjustments; and 5. Victimisation. The respondents[15]R1 was not represented at the hearing. Following the preliminary hearing on 21 March 2024, the claim was re-served on R1 on 6 June 2024, but no response has been received. It is understood that, at the relevant time, R1 worked for Zoom Recruitment Limited, but that her employment with them ceased on 10 August 2023.[16]R2 is a manager to whom the claimant reported when she attended shifts at R3. R2 and R3’s solicitor is referred to as R’s solicitor in the judgment. The hearing Case No: 2304116/2023 10.5 Reserved judgment with reasons – rule 62 March 2017
[21]On the morning of the hearing, at 812am, the claimant sent in her written submissions by email, with 14 attachments. The submissions were lengthy and comprised material which had largely been cut and pasted from other documents as well as a long list of documents in the bundle which the claimant said supported her claim.[22]The claimant had not cooperated with the respondents in preparing for the hearing, including by failing to disclose relevant documents related to her employment status, despite requests on 8 July 2024 and 17 July 2024, failing to produce a list of documents and instead choosing to send documents in a haphazard fashion via email. Case No: 2304116/2023 10.5 Reserved judgment with reasons – rule 62 March 2017 LAW Strike out
LAW
[23]Rule 2 of Schedule 1 of the Employment Tribunal Rules of Procedure (the Rules) sets out the overriding objective of the Tribunal to deal with cases fairly and justly. When exercising any power given to it by the Rules, the Tribunal must seek to give effect to the overriding objective. This includes ensuring so far as practicable that the parties are on an equal footing, dealing with cases in a manner which is proportionate to their complexity and importance and avoiding delay.[24]Rule 37(1) of the Rules provides that: At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds:(a) that it is scandalous or vexatious or has no reasonable prospect of success;(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;(c) for noncompliance with any of these Rules or with an order of the Tribunal;(d) that it has not been actively pursued;(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).[25]The power to strike out a claim is a draconian measure, and great care is to be taken in deciding whether to exercise it and if so to what extent (see Anyanwu & another v South Bank University & South Bank Student Union [2001] ICR 391; Blockbuster Entertainment Ltd v James [2006] EWCA Civ 6841; Smith v Tesco Stores [2023] EAT 11). The approach generally[26]When deciding whether to strike out a claim, a Tribunal must:a. First consider whether any of the grounds set out in Rule 37(1)(a) to (e) have been established;b. Secondly decide whether to exercise its discretion to strike-out.[27]A Tribunal should bear in mind the overriding objective of dealing with cases ‘fairly and justly’ when considering whether to strike out. This includes, among other things, ensuring so far as practicable that the parties are on an equal footing, dealing with cases in ways that are proportionate to their complexity and importance, and avoiding delay. The overriding objective means that the proportionality of the sanction must be at the forefront of the Tribunal’s mind. 37(1)(b): the manner in which the proceedings have been conducted has been scandalous, unreasonable or vexatious[28]In this context, “Scandalous” means irrelevant or abusive of the Tribunal (Bennett v Southwark London Borough Council [2002] ICR 881). Sedley LJ explained the term as follows at [27]: The trinity of epithets "scandalous, Case No: 2304116/2023 10.5 Reserved judgment with reasons – rule 62 March 2017 frivolous or vexatious" has a very long history which has not been examined in this appeal, but I am confident that the relevant meaning is not the colloquial one. Without seeking to be prescriptive, the word "scandalous" in its present context seems to me to embrace two somewhat narrower meanings: one is the misuse of the privilege of legal process in order to vilify others; the other is giving gratuitous insult to the court in the course of such process. Each meaning has lexicographical and legal support, the first in the principal Oxford English Dictionary definitions of "scandal" and "scandalous", which have to do with harm and discredit; the second in "scandalising the court", a historical form of contempt; and both in Daniell's entry in Byrne Dictionary of English Law (1923) cited by Ward LJ in his judgment at paragraph 53. These considerations are not of course exhaustive, but they are enough to make it plain that "scandalous" in the rule is not a synonym for "shocking". It is a word, like its sibling "frivolous", with unfortunate colloquial overtones which distract from its legal purpose: see the remarks of Lord Bingham of Cornhill CJ in R v Mildenhall Magistrates Court, Ex p Forest Heath District Council (1997).[29]A “vexatious” claim is one that is pursued not with the expectation of success but to harass the other party or out of some improper motive. The Employment Appeal Tribunal held as follows in ET Marler Ltd v Robertson [1974] NIRC 72 in the context of an application for costs: “If an employee brings a hopeless claim not with any expectation of recovering compensation but out of spite to harass his employers or for some other improper motive, he acts vexatiously, and likewise abuses the procedure. In such cases the tribunal may and doubtless usually will award costs against the employee. The exercise of the discretion by tribunals along these lines is illustrated in a number of decisions to which the court was referred during the course of argument.” Whilst not directly relevant to the manner in which proceedings are conducted, it is relevant to consider the meaning of vexatious in this context.[30]Subsequently, in Attorney General v Barker [2000] 1 FLR 759 Lord Chief Justice Bingham said that the hallmarks of a vexatious proceeding were that it had: “…little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process.” Again, it is useful to understand the meaning of vexatious.[31]A Tribunal may strike out for “unreasonable” conduct if the party’s conduct has involved deliberate and persistent disregard of procedure or has made a fair trial impossible. In either case, the striking out must be a proportionate response (Blockbuster Entertainment Ltd v James [2006] IRLR 630, CA).
Conclusions
[32]I have set out above an outline of the claimant’s very brief employment with R3. As noted above, she worked just two shifts for R3 and did not Case No: 2304116/2023 10.5 Reserved judgment with reasons – rule 62 March 2017 work again. This is important as it forms the context.[33]I have also noted the claimant’s extensive number of claims and the fact that she is an experienced litigator in the employment tribunals.[34]The voluminous correspondence set out above points strongly to the claims being scandalous (ie a misuse of the privilege of legal process in order to vilify others) and/or unreasonable and/or vexatious (ie having the effect of subjecting the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue, and involving an abuse of the process of the courts). The nature of the correspondence overall indicates an approach to litigation by the claimant, which is to resist resolution of the simplest of matters and to be offensive and accusatory in correspondence.[35]I find that the chronology, correspondence and facts set out above shows that the claimant:a. Failed to co-operate with R’s solicitor in preparing for this hearing, including by: i. failing to disclose relevant documents related to her employment status, despite requests on 8 July 2024 and 17 July 2024; ii. failing to produce a list of documents; iii. failing to provide details of documents which she says were missing from the hearing bundle; and iv. sending documents in a haphazard fashion via email, all causing those acting for R2/R3 to incur significant additional time and expense which was entirely disproportionate to the issues. By way of example, the claimant’s email of 4 July 2024 states that the respondent should include in the Bundle: “All emails I sent objecting strike out applications and case authorities” and “all emails I sent to my MP, police, SRA”. I find the claimant’s conduct of the proceedings in this way to be unreasonable and vexatious as it has subjected R2/3 to inconvenience, harassment and expense out of all proportion to any gain likely to accrue, and involving an abuse of the process of the courts.b. Failed to co-operate with the Tribunal, by: i. similarly sending documents and information in a haphazard fashion (such as on 8 May 2024 and 17 September 2024); and ii. ignoring the Tribunal’s specific and clear instructions (for example that of EJ Leith on 15 July 2024 when he wrote: “Any correspondence to the Tribunal must be copied to the other party, via their representative (subject to the exception in rule 92 of the Employment Tribunal Rules of Procedure).” The claimant wrote to the Tribunal again on 25 July 2024 asking about postponement without copying in R’s solicitor and also on 17 September 2024.) The claimant has also, despite requests not to do so, persistently copied vast quantities of email correspondence to R2/R3 despite them being represented (16 June 2024; 18 June 2024, 4 July 2024). Case No: 2304116/2023 10.5 Reserved judgment with reasons – rule 62 March 2017 I find that the manner in which proceedings have been conducted in this regard to be scandalous in that it is a misuse of the privilege of legal process; and unreasonable as it involves deliberate and persistent disregard of procedure.c. Is willing to criticise the Tribunal and involve the EAT and others (such as the Lord Chancellor and the President’s office) without good cause, for example on 6 June 2024 when the claimant, copying the EAT, said that she would take the matter to the EAT because she had requested a default judgment three times and the Tribunal had thereby breached rule 21. The claimant also indicated that she would appeal the EAT’s decision to uphold the Tribunal’s decision not to postpone the preliminary hearing to the Court of Appeal. The manner in which the claimant has conducted these proceedings in this regard is scandalous as she is giving gratuitous insult to the court in the course of the proceedings whenever she does not get the response she wants or as quickly as she wants it. The claimant demonstrates no respect for the Tribunal process.d. Has persistently and without good cause accused R’s solicitors of committing various criminal and/or civil offences in their entirely appropriate conduct of these proceedings, including on: i. 10 June 2024 when the claimant wrote, “ I am putting you on notice that should you continue to make any statement/s which are deemed to be libelous, that I will sue you for defamation of character and slander.” ii. 16 June 2024: “And seeking appropriate fine and/or any other punishment applicable by law against all respondents their representatives… and all parties… on the basis that all respondents has undermined the authority of the Tribunal, the administration of justice, and/or attempted to prejudice the Claimant’s claim on multiple occasions by providing deliberate or reckless false and/or misleading statements in their written statements, applications to the ET, and submissions to the Tribunal throughout the proceedings thus far in the attempt to mislead the Tribunal.” iii. 16 June 2024: “He has made applications to the ET to strike out my claims by making false statements and allegations that I am vexatious and unreasonable just because I am standing up for my rights and raising concerns to the SRA of him breaching SRA principles. He has tried to silence me because I have approached my MP and police because of past judges decisions that have striked out my claims without hearing evidence, which is a must in whistleblowing and discrimination claims and because of lawyers like him concealing and making false statements and misleading the ET in their evidence; iv. 18 June 2024 at 1311 to the Tribunal, R’s solicitor and R1 to confirm her position that R’s solicitor’s conduct was “dishonest and unreasonable” and referring to the SRA and her MP; v. 4 July 2024 and copied into an MP; Whistleblowing; R2 and R’s counsel and other individuals stating, inter alia, that all parties are vicariously liable and that R’s solicitor “ has acted unreasonable and dishonest during proceedings..”.; and Case No: 2304116/2023 10.5 Reserved judgment with reasons – rule 62 March 2017 vi. 18 July 2024 when the Tribunal was copied into an email to the Lord Chancellor alleging that the claimant was retaliated against for taking matters to the police, her MP and the Tribunal. I find that these examples demonstrate the misuse of the privilege of legal process in order to vilify others, and that the manner of conducting proceedings in this way is scandalous.e. has made repeated unwarranted threats to report and has in fact made unwarranted reports about R’s solicitors to the SRA, the Police and other regulatory authorities, for example in the email of 15 July 2024 in which the claimant stated that she had contacted the police in regards to perjury, false statements, contempt of court, and preventing the administration of justice by the respondents and their representatives during proceedings. I find this demonstrate the misuse of the privilege of legal process in order to vilify others, and that the manner of conducting proceedings in this way is scandalous.f. persistently copied vast quantities of email correspondence to individuals/organisations including members of parliament, the Prime Minister and solicitors involved in other proceedings, including on 15 July 2024 and 19 September 2024, despite repeated requests not to. Even before being asked not to, the claimant copying in multiple recipients is indicative of an approach to litigation which is unco-operative and seeking to maximise inconvenience to others. I find that it is an abuse of the process of the tribunal and that the manner in which the claimant has conducted proceedings is, in this regard, vexatious. It is noteworthy that the claimant was put on notice by R’s solicitor’s email of 10 June 2024, that her conduct in this regard was considered vexatious and could cause the basis of an application for strike out. R’s solicitor set out: “The Claimant has also copied in the writer to various emails regarding other claims and communications with the SRA (examples attached). We are unsure of the Claimant's motivation in respect of the above, but we are concerned that the Claimant's conduct is vexatious and designed to cause disruption and intimidate. We therefore ask that the Tribunal at the PH also considers a further ground for strike out, namely that the Claimant's conduct in the manner in which the proceedings are being conducted is unreasonable and vexatious”. Despite this further unwarranted emails were sent to multiple inappropriate recipients including on 16 June 2024; 18 June 2024; and 4 July 2024. I find that these threats to report R’s solicitor to the SRA, the legal ombudsman and the Court/Tribunal and the multiple emails copied to the Tribunal, to the respondents, to the SRA and others were an attempt by the claimant to intimidate, cause worry and deter the appropriate defence of the claims. Again, the Tribunal finds that the manner in which the claimant has conducted proceedings, in this regard, is unreasonable and vexatious.g. Has made an unwarranted application for an unless order and/or to strike out the respondent’s response on the basis that it has not complied with case management orders and yet has been unable, despite specifically being requested to do so by AREJ Khalil and during this preliminary hearing, to specify with any clarity what the alleged breach is. This is a misuse of the privilege of legal process Case No: 2304116/2023 10.5 Reserved judgment with reasons – rule 62 March 2017 and is designed to cause the maximum inconvenience to the respondents and others.[36]For these reasons, I find that the manner in which the proceedings have been conducted by the claimant has been scandalous, unreasonable and vexatious. The effect of the claim has already been to subject the respondents to considerable inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant. I have concluded that the claim involves an abuse of the process of the court, in other words that the Tribunal process is being used for a purpose or in a way which is significantly different from the ordinary and proper use of the Tribunal process. Strike out[37]I have considered whether to exercise my discretion to strike the claim out, considering, as I have done so, that the power to strike out a claim is a draconian measure, and that great care is to be taken in deciding whether to exercise it. I must consider whether a fair trial is still possible and whether striking out is a proportionate response.[38]I have concluded that I should exercise my discretion to strike out the claimant’s claim. I have concluded that there is no factor to which significant weight should be attributed which suggests that I should not strike it out. By contrast, the manner in which I find the proceedings have been conducted weighs heavily in favour of striking it out.[39]In light of the claimant’s persistent conduct of this claim, I do not consider that a fair trial could be possible. There is no evidence whatsoever to suggest she won’t continue to conduct her claim in a similar manner. Although the claimant has had a representative on record since 6 August 2024, there is no evidence to suggest that he has any influence over the claimant’s conduct of the claim. Indeed, the communications set out above after 6 August 2024 included those sent to the Lord Chancellor. The fact that the claimant was represented also did not prevent the claimant appealing the refusal to postpone this hearing to the EAT, and indeed threatening to appeal to the Court of Appeal. In any event, Mr Robertson come off the record at any time. The respondents cannot be recompensed by costs as the claimant is on universal credit.[40]The manner in which the proceedings are conducted is worse because of the claimant’s significant experience in the employment tribunals. In my view, that is a further factor which weighs in favour of strike out.[41]The overriding objective means that the proportionality of the sanction must be at the forefront of the Tribunal’s mind. Nonetheless, I conclude that the balance of prejudice weighs heavily in favour of striking it out. The claimant’s application for strike out[42]For completeness, I have found there to be no merit whatsoever in the claimant’s application for strike out of the respondent’s response for failure to comply with case management orders. Despite requests to do so, including at this hearing, the claimant was unable to specify what the Case No: 2304116/2023 10.5 Reserved judgment with reasons – rule 62 March 2017 alleged breach was. The application fails. Other applications[43]The remaining applications have not been considered as the claim is struck out.