Miss M Waterworth v Manchester University Hospitals NHS Trust: 2401633/2022
EMPLOYMENT TRIBUNALS
Case No 2401633/2022, 2401206/2020
Between
Miss M WaterworthClaimantManchester University Hospitals NHS TrustRespondent
Before
Employment Judge BarkerIn person for claimantMs A Smith (instructed by counsel) for respondentDate 11 April 2024
JUDGMENT
The claimant’s complaints are dismissed because they are an abuse of process. These claims could and should have been brought and heard along with the claimant’s five other claims heard as claim number 2401206/2020. JUDGMENT having been sent to the parties on 23 April 2024 and written reasons having been requested by the claimant in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:
REASONS
Preliminary Matters and Issues for the Tribunal to decide[1]The claimant, who is a litigant in person, was provided with the assistance of an intermediary, Miss Gartside, throughout this hearing. The Tribunal was provided with the intermediary’s report, which it has read in full, and took into account the adjustments requested in it when conducting this hearing.[2]This public preliminary hearing was listed by Employment Judge Allen at a case management preliminary hearing on 30 August 2023. At that hearing, Employment Judge Allen also began the process of appointing an intermediary to assist the claimant. The matter was also listed for a five-day final hearing in March 2025.[3]There was a further preliminary hearing in this matter for case management purposes on 23 February 2024 before Employment Judge Eeley. Miss Gartside, having been appointed as an intermediary by this stage, attended to assist the claimant. At this hearing, the matters to be determined by me today were clarified to be some or all of the following:a. Whether the Tribunal has jurisdiction to consider the claimant’s claim and/or whether it should be dismissed/struck out in its entirety because the ACAS Early Conciliation certificate relied upon was dated 19 January 2020 and the issues in the claim occurred after that date (and the same certificate was relied upon in the claimant’s previous claims);b. Consider the 3-month statutory time limit applicable in these proceedings. Any incident which occurred earlier than 29 November 2021 occurred more than3 months before the claim was presented at the Tribunal and looks, on the face of it, as though it was brought to the Tribunal late.c. Whether the claimant is able to pursue all of the claim brought (or specific parts of it), in the light of her previous claims heard under lead case number 2401206/20. The Tribunal may consider the extent to which the legal claims in this current case overlap with legal claims that the claimant brought (or could have brought) as part of the earlier 15- day final hearing. Is the claimant prevented from pursuing her claims and/or is it an abuse of process to allow some or all of her claims in the current case to go through to a final hearing to be decided?[4]Employment Judge Eeley clarified the claims brought by the claimant in these proceedings. They are in summary, claims of disability discrimination and whistleblowing detriment. In the record of the case management hearing, Employment Judge Eeley clarified that the claims relate in large part to Mr David Jackson shredding the documents which the claimant had given to him so that he could investigate her grievance. She alleges that she had spent a considerable period of time organising the documents and labelling them in a way which helped her to use them and to overcome the difficulties associated with her dyslexia. She says that she asked him to give them back to her in the same format as she presented them so that she would be able to use them and the time she had spent on preparing them would not be wasted. She says Mr Jackson did not do as she asked. He scanned the documents into a digital format and then shredded the originals. He shredded the documents on or about 2 September 2021.[5]He then sent the documents to the claimant in an electronic format, as an attachment to an email. No paper copy was provided. She says the electronic documents were not properly scanned and some documents were illegible or incomplete. They were not indexed, paginated or organised. The claimant had considerable difficulty in using the documents in that form, both in the internal grievance and during the subsequent Employment Tribunal proceedings. She says she felt significantly disadvantaged as a result. All of the disability discrimination complaints (which are brought under sections 15, 19, 20-22, 26 and 27 Equality Act 2010) relate to the issue of the documents being shredded and sent to her in an unwanted format, save for one allegation of victimisation relating to Mr Jackson allegedly ignoring evidence or refusing to consider it.[6]The claimant also complains about the way Mr Jackson considered and decided the outcome to her grievance. This forms part of a victimisation and protected disclosure detriment claim. The claimant says that, amongst other things, her grievance complaint made protected disclosures in that:a. Alleged that administrative staff were being asked to do clinical work that they were not qualified to do. She alleged that staff were overloaded with too many patients/risky patients. She alleged that the respondent tried to cover up the fact that an administrative employee “Anna” had been tasked with doing an observation/assessment of child with suspected ADHD/ASD.b. Alleged that the claimant’s new manager had refused to acknowledge the claimant’s agreed reasonable adjustments and had refused to implement them.c. Alleged that the claimant was being required to do work at Band 6 whilst only being paid at Band 5 level.[7]These written reasons are considerably more detailed than the reasons given to the parties at the end of the hearing on 11 April, which were summary reasons only. Summary reasons were given to the claimant as an adjustment, as she told me she was struggling to continue to engage in the proceedings by that stage in the afternoon. I did not wish to add to this by providing the parties with a lengthy oral judgment and so provided an abbreviated version at the time. The Previous Claims (Claims 1-5)[8]The claimant has also presented a series of other claims to the Tribunal in relation to her employment at the respondent. She issued claims on 19 February 2020 (“claim 1”), 22 December 2020 (“claims 2 and 3”), 6 January 2021 (“claim 4”), 11 June 2021 (“claim 5”) and 28 February 2022 (“claim 6”). Claim 6 is the claim to which this judgment and reasons relate. All six claims contain complaints of whistleblowing detriments and disability discrimination. The claimant remained in employment with the respondent throughout the period in which the claims were presented.[9]As is to be expected in circumstances where a claimant raises allegations of whistleblowing detriments and disability discrimination, the claims were case managed by judges at intervals in the proceedings. At three preliminary hearings, the claimant’s numerous applications to amend her claims were discussed with the judge present, including in the first preliminary hearing in relation to claim 1 before Employment Judge Whittaker on 9 November 2020.[10]The claims were consolidated and listed for a final hearing for 15 days in August 2022. At a two-day case management preliminary hearing before Employment Judge Leach on 21 and 22 June 2021, it was confirmed that the matter remained listed for the 15 day hearing in August 2022. At this stage, the claimant had issued claims 1-5, but it was noted by the judge that there had been “considerable numbers of narratives produced with significant factual crossovers”. It was apparent that Employment Judge Leach had spent considerable time during the two-day hearing discussing and clarifying the List of Complaints and Issues with the parties. That List, which was over 18 pages long, was set out at the back of the Orders produced following the hearing.[11]On 3 August 2021, the claimant emailed the respondent’s solicitors. She said that some allegations were currently not included within her claim. The respondent’s solicitors explained that if she wished to add in these new allegations to her claims, she should consider making an application to amend her existing claim or consider submitting a new claim form if she viewed these allegations to be a new matter.[12]On 2 November 2021 Employment Judge Leach wrote to the parties to state, amongst other matters, “I note that the parties have agreed a list of complaints and issues”. It is apparent that at this stage, although the claimant was aware of further allegations not in her claim (as she wrote on 3 August 2021), she did not include these in the proceedings.[13]On 15 January 2022, Employment Judge Leach wrote to the parties in relation to correspondence from the respondent’s solicitors in which they requested a further preliminary hearing, because of the extent of the claimant’s requests for disclosure and because they were concerned that “the claimant might be looking to amend her claim even following the considerable efforts to draft and agree a full list of complaints and issues”. No preliminary hearing was listed at that stage, but Employment Judge Leach wrote “Both parties are reminded of my reference to the Overriding objective at Rule 2 of the Employment Tribunal Rules of Procedure 2013 which includes a requirement to deal with cases in ways proportionate to their complexity and importance and saving expense. This is a complex case with many issues but one that has already had 3 preliminary hearings for case management purposes including the most recent one over 2 days. It would be disappointing if another preliminary hearing is required for case management. ……. I also note the following comment in Hill Dickinson’s email of 11 January “...we are concerned that the Claimant’s recent correspondence and amended documentation list seeks to add new allegations or issues to her claim. As the Tribunal will recall, this case has been through a very thorough process with Judge Whittaker and Judge Leach to conclusively identify the issues to be determined at the Full Hearing. This process involved numerous lengthy Preliminary Hearings, and several iterations of the pleadings.” The claimant should confirm her position within 21 days of the date of this letter. Is the agreed list of complaints and issues complete or is she intending to apply to amend her claim?”[14]The claimant had written to the Tribunal on 18 January 2022 to request an extension of time to the order to provide the Tribunal with an update about whether she intends to apply to amend her claim. On 4 February 2022 Employment Judge Leach wrote to the parties and gave the claimant until 28 February 2022 to do so.[15]By a claim form dated 28 February 2022 the claimant submitted claim 6. It was headed “Application to Amend” in the narrative of the claim form.[16]Employment Judge Leach wrote to the parties on 1 April 2022 and asked the claimant to state within 7 days whether claim 6 was a new claim or an amendment to existing claims. Employment Judge Leach explained that if it was an application to amend existing claims, she should state this and state that she withdraws the new claim. The respondent would then not need to submit a response, and the application to amend the existing claims would be considered and determined.[17]Employment Judge Leach acknowledged in the same letter that the respondents had asked for a preliminary hearing. A final preliminary hearing had been listed for 8 July 2022 to discuss the claimant’s required adjustments for the final hearing. Employment Judge Leach noted that it would not be possible to arrange a further preliminary hearing much in advance of the final hearing, and 8 July 2022 was too late to deal with an application to amend, as the final hearing was to start 3 weeks later. He therefore proposed that the amendment application, if the claimant confirmed that this was what claim 6 was, could be dealt with on paper.[18]Employment Judge Leach’s letter notwithstanding, the claimant did not confirm within 7 days how she wished claim 6 to be dealt with. She wrote to ask for more time. It is unclear why she did so, as she had labelled claim 6 as an application to amend and had clearly been considering introducing additional matters to the litigation for some months.[19]Employment Judge Leach wrote to the parties on 8 April 2022 as follows: “The claimant may respond to that question [i.e. a new claim or an amendment] when she is able. It is noted that she has requested advice from the Citizens Advice Bureau. In the meantime, as a new claim form has been issued it must proceed as a new claim. The respondent has now been served with the new claim and is aware of the requirement to present a response. Once the response has been received, consideration will be given to consolidation of the new claim with the existing claims. The current view is that this should only happen if it would not jeopardise the final hearing in the existing claims which is listed for 15 days beginning on 1 August 2022”. (Emphasis added)[20]In an email to the Tribunal and the respondent of 29 April 2022, the claimant wrote “I am aware that, the new evidence regarding this will need to be submitted as soon as possible so that it does not jeopardise the hearing date set for the 1st August 2022.”[21]She wrote “I am desperately trying to get Legal advise but as I can’t afford a Solicitor and Citizens Advise Burrough Solicitor has still not contacted me, I have contacted a Law Centre who have booked me in on Thursday 5th May to speak with a Solicitor for 1 hour. This is regarding if the New Claim should go forward as a separate claim or as an amendment to the existing claims.”[22]Employment Judge Leach wrote to the parties on 10 May 2022 and stated that, given the extent of the detail in the ET1 and the respondent’s ET3 to claim 6, which included jurisdictional issues, it was proposed that case management of the new claim was postponed until after the final hearing in claims 1-5. Case management of claim 6 was postponed until 1 November 2022. The parties were given 7 days to object to this course of action. Neither party did so.[23]On 26 May 2022, Employment Judge Leach wrote to the parties acknowledging that the claimant had asked for further time to respond. He wrote “the claimant should note that the decision has now been made to stay (postpone) the new claim pending the outcome of the final hearing in August 2022. This means that the complaints raised in the new claim will not be considered and determined at the final hearing. Employment Judge Leach has directed that the new claim will progress following the conclusion of the final hearing in August 2022.”[24]On 30 May 2022, Employment Judge Leach wrote again noting that the claimant had asked for advice in an email of 26 May 2022. He declined, noting that Tribunals were unable to provide legal advice, but directed the claimant to sources of free legal advice and assistance.[25]At the case management hearing on 8 July 2022, it was confirmed that, at paragraph 7: “…since the third preliminary hearing, the claimant had issued a sixth claim form (case number: 2401633/2022). This claim shall not be considered at the forthcoming final hearing in August 2022. This is because the parties have agreed that the listed final hearing shall only deal with events and matters comprised in the first to fifth claim forms, that is to say events and matters up to 21 May 2021.”[26]The final hearing in claims 1-5 took place in August 2022. All claims failed and were dismissed except for a single instance of disability-related harassment. The claimant has issued an appeal to the Employment Appeal Tribunal.
Findings of Fact
[27]It is the respondent’s case that the protected disclosures in claim 6 overlap entirely with the protected disclosures already dismissed by the Tribunal in claims 1-5. Having considered the list of issues in claim 6 as clarified by Employment Judge Eeley against the findings of the Tribunal in the final hearing in claims 1-5, I accept that this is the case. Those matters were dismissed by the Tribunal and therefore the claimant cannot rely on those disclosures raised in claims 1-5 to pursue claims of whistleblowing detriment in claim 6, including in relation to Mr Jackson’s conduct.[28]I also find that the Tribunal in claims 1-5 agreed not to consider evidence relating to matters after May 2021. The issue of Mr Jackson’s conduct and the shredding etc of the documents did not occur until after this time. The claimant’s disability discrimination complaints therefore only arose, in relation to the matters pleaded as disability discrimination in claim 6, after May 2021. They cannot be said to have been determined by the Tribunal already.[29]In relation to the conduct of claim 6 by the claimant, I find that by April 2022, it was made clear to her that the issuing of claim form number 6 so close to the final hearing caused significant problems for the Tribunal and the respondent. She was reminded in correspondence by Employment Judge Leach about how much time and resources had been spent managing her claim. She was reminded about the need for proportionality and co-operation between the parties. She was given a clear way forward for her new allegations to be included in the existing claims 1-5, but she needed to confirm to the Tribunal that they were an application to amend. Given that her claim form on the face of it contained the heading “Application to amend”, this should have been a straightforward exercise and one that the claimant could have complied with within the 7-day deadline set by Employment Judge Leach.[30]The claimant alleges that Employment Judge Leach’s request was confusing and misled her. However, I find that confirmation of the nature of claim 6 was required because she had issued it on a new ET1 form. This suggests it is a new claim. However, the particulars of claim were headed “Application to amend”. This is contradictory. I find that it was therefore not clear to either the Tribunal or the respondent whether this was a new claim or an amendment to the existing claims. The claimant had been advised by the respondent’s solicitors, rightly, in their response to her email of 3 August 2021, that if her new allegations were to be added in to the existing claims, she needed to make an application to amend, or if they were new matters she should submit a new claim form. As she had done both (that is, submitted a new claim form but headed it “Application to amend”), it was for her to confirm which way she wished it to be dealt with.[31]She now alleges that Employment Judge Leach is to blame for the circumstances that she finds herself in regarding claim 6, in that he confused her with his letter of 1 April 2022. I do not accept that this allegation can be upheld against him. It is not for the Tribunal to decide on behalf of a claimant what they should do or advise them of a course of action. It is not possible for judges to provide parties with advice on their claims.[32]Nevertheless, it is clear that the claimant had been given considerable guidance and direction from both the respondent’s solicitors and the Tribunal on the procedural steps she needed to take, and the consequences of presenting the new allegations as either applications to amend or a new claim. It was clear from Employment Judge Leach’s letter of 1 April 2022 that a new claim may not be able to be added to the existing claims in time for the final hearing on 1 August 2022, but that an application to amend might be. It was also clear from his letter that, whatever the claimant decided to do, she needed to inform the Tribunal and the respondent of her decision quickly.[33]It also needs to be noted that at this stage (April 2022), the claimant had spent a considerable amount of time engaged in the Tribunal process. She had spent a considerable amount of time with employment judges discussing and clarifying her claims and issues. She was not, I find, new or unfamiliar to the process. Although it is accepted that she was (and is) a litigant in person, who has additional needs, she was by this stage far more familiar with the workings of the tribunal process than she would have been had this been her first claim, as opposed to her sixth.[34]I find that the decision taken by Employment Judge Leach on 10 May 2022 to postpone dealing with claim 6 until after the final hearing of claims 1-5 was taken in the absence of any clarification or decision taken by the claimant.[35]The claimant now says before me that there was only one key issue in claim 6, which is an allegation that her documents were shredded by Mr Jackson, who was appointed by the respondent to investigate complaints of hers. This was not, I find, clear from the face of claim 6, which contains other complaints and allegations, notably to do with whistleblowing. These are said by the respondent to overlap entirely with those whistleblowing claims already decided by the Tribunal in claims 1-5. I accept that this is the case.[36]I find that had the issue of the documents been the only issue in claim 6, and given the claimant has repeatedly stressed to me during this hearing how important the documents were to her, and how damaging to her it was that they were shredded and not returned, it ought to have been straightforward for her to raise this single issue promptly as an application to amend claims 1-5. It ought to have been apparent to her from Employment Judge Leach’s letter of 8 April 2022, that it was not at all guaranteed that otherwise, anything said to be a new claim could not be heard with the others, given the closeness of the final hearing.[37]I find that the claimant was given a reasonable opportunity to take steps to have the issues in claim 6 heard as part of claims 1-5, and she failed to avail herself of these opportunities. The decision by Employment Judge Leach to defer claim 6 to after the final hearing was taken in the absence of any response by the claimant to his question about whether claim 6 was a fresh claim or an application to amend.[38]I find that the claimant delayed unreasonably in clarifying claim 6. It is clear that she had begun to consider making additional complaints which were not in claims 1-5 as early as August 2021. The obligation was on her to present those additional claims as soon as possible and she did not do that. Even once they were presented, she did not clarify how she wished these to be dealt with promptly. She attended the CAB for an hour’s appointment with an advisor on 5 May 2022 but still did not clarify her claims after that. She asked Employment Judge Leach for advice on several occasions in correspondence. She told me at this hearing that Employment Judge Leach should have told her what she needed to do, as she was confused. This is obviously not possible, given a judge’s need to remain impartial between the parties
The Law
[39]Cause of action estoppel: It is a clear rule that a party cannot pursue a cause of action twice (Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (formerly Contour Aerospace Ltd) 2014 AC 160, SC, Arnold v National Westminster Bank plc (No.1) 1991 2 AC 93). It does not matter if the party has an explanation or excuse, the rule will still apply.[40]The question is whether there are sufficient differences between the two causes of action (Conservation v Cokayne 2008 ICR 185). If the two causes are materially the same, they will be treated as the same cause of action.[41]Issue estoppel means that a claimant ought not be able to bring a second claim which rests upon a previous finding of fact that a previous Tribunal has decided that was a condition of the claim succeeding (Thoday v Thoday 1964 P 181).[42]In relation to the principle of abuse of process, tribunals considering the principle in Henderson v Henderson (1843 3 Hare 100, ChD) should consider whether, taking into account all the circumstances, a party is abusing the process of the court by seeking to raise a matter that it should have raised before.[43]This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.[44]The earlier opportunity to bring a claim may consist of an opportunity to bring it by way of amendment to existing proceedings. In London Borough of Haringey v O’Brien EAT 0004/16,[45]As Lord Bingham made clear in Johnson v Gore Wood and Co 2002 2 AC 1, a claim will not be barred simply because it could have been brought in earlier proceedings; the court or tribunal must also be satisfied that it should have been brought earlier. Application of the law to the facts found[46]In relation to the claimant’s claims of whistleblowing detriment, the protected disclosures relied on by her in this claim (number 6) have already been determined and dismissed in claims 1-5. Her protected disclosure complaints in claim 6 are subject to issue estoppel and may not continue. The new detriments alleged rely on findings of fact made by the Tribunal in the earlier proceedings, which failed on this head of claim.[47]In relation to the discrimination claims, those claims all relate to the conduct of the claimant’s final grievance by Mr Jackson in 2021. She received the grievance report on 12 January 2022 and says the documents were shredded on 2 September 2021. Given that the Tribunal did not consider matters which occurred after May 2021 in claims 1-5, there is no cause of action estoppel in relation to the discrimination claims in claim 6.[48]In relation to issue estoppel for the discrimination claims, there is none. The Tribunal at the final hearing in claims 1-5 did not make any findings of fact beyond June 2021. The new discrimination issues all arise from September 2021 onwards.[49]Was the claimant, in all the circumstances, abusing the process of the court by seeking to raise a matter in claim 6 that it should have raised before? In Henderson, the court would not permit the same parties to open the same subject of litigation in respect of matters which might have been raised on an earlier occasion but was not, only because they have omitted part of their case.[50]The claimant has never clarified her claims in claim 6, in relation to whether she wished the matter to be dealt with as an amendment or a new claim. She did not respond to the Tribunal’s requests for clarification in time for the matter to be included with claims 1-5. Claim 6 was designated a new claim by default in the absence of any further information from the claimant. In fact, the particulars of claim 6 are lengthy and unclear and repeat much information already before the Tribunal, save for the issues relating to Mr Jackson.[51]Parties have an obligation to co-operate with the Tribunal to allow cases to be determined in accordance with the interests of justice. The claimant had an obligation to be clearer about what was new in claim 6. She did not comply with that obligation. I have taken into account the claimant’s dyslexia and the contents of the intermediary’s report. However I have also taken into account the claimant’s demonstrated ability to engage with the Tribunal and the proceedings when required. She was able to clarify claims 1-5 with the assistance of the Tribunal and the respondent and was able to agree a lengthy and detailed list of issues for claims 1-5.[52]There is no apparent reason why there was such a long delay in her doing so for claim 6. According to the claimant, the issue of the shredding of documents arose on 2 September 2021, then she received the grievance report on 12 January 2022. There was considerable correspondence between the claimant and the Tribunal in late 2021 and early 2022. The claimant had already emailed the Tribunal on 21 September 2021 to complain about the shredding of the documents but did not address this by way of an application to amend her claims to include it. She agreed a final list of issues with the respondent in November 2021. She nevertheless continued to raise other issues informally with the respondent after this date.[53]Employment Judge Leach wrote on 15 January 2022 to ask the claimant to confirm within 21 days if the list of issues is complete or did she want to amend her claim. The claimant repeatedly asked for extensions of time to do this and was given until 28 February 2022 to decide if she wanted to amend her claim. She subsequently submitted claim 6 by way of an ET1 on 28 February making clear it was an application to amend her claim. The chain of correspondence between her and Employment Judge Leach is set out above. I do not accept, as stated earlier, that Employment Judge Leach had any duty to tell the claimant how to proceed. On the contrary, the claimant was given guidance and took further advice from the CAB, but failed to respond in time and a default decision was taken on 10 May 2022 to postpone consideration of claim 6 until after the final hearing, to which the claimant did not object.[54]I find that the need to promptly clarify claim 6 was obvious to the claimant. Had she applied to amend sooner, she should have been able to include the issues about Mr Jackson in claims 1-5 at the final hearing in August 2022. I accept that the claimant agreed in August to limit the evidence at the final hearing to May 2021, but it was too late by then to do otherwise, or else the whole 15 day hearing may have been at risk.[55]I find that the whole of the claimant’s case existed by February 2022 at the latest. Had it been clarified before 10 May 2022, it would have been heard in August 2022. It was not reasonable for the claimant to delay so long to raise issues with the Tribunal, which would have left matters so late that there was no time for the parties to prepare properly for the final hearing.[56]There is a public and private interest in finality in litigation. The claimant has had 15 days of Tribunal hearing time for her final hearing, and multiple other days of Tribunal time for case management hearings and correspondence with the Tribunal, with very limited success. It is not proportionate or reasonable to continue this litigation given that all matters complained about in claim 6 could have and should have been included in the final hearing of claims 1-5.[57]I do not accept, as the claimant told me during this hearing, that she was misled and confused by Employment Judge Leach over the question about whether claim 6 was to be treated as an application to amend. The Tribunal must consider what is in the interests of justice to both parties. It is not in the interests of justice for the respondent to be faced with a further 5 day final hearing in March 2025 to determine an issue that was in existence in full in February 2022, and should have been clarified in time to be dealt with at the final hearing in August 2022. The clarification should have taken place between claim 6 being issued in February, and the Tribunal’s final letter on claim 6 on 10 May 2022. Failure to do so, and the claimant’s request to continue the proceedings, is an abuse of process. The claims are hereby dismissed.