Employment Judge LangridgeMr M Broomhead for claimantMr N Siddall (instructed by Counsel) for respondentDate 14 September 2021
JUDGMENT
[1]The claimant’s claim of unlawful harassment pursuant to section 26 Equality Act 2010 is struck out.[2]The claimant’s application to the Tribunal having identified no other claims under the Equality Act 2010, and no application having been made to amend the application so as to add claims under sections 13, 27 or 39 of that Act, the only claim which may proceed is the constructive unfair dismissal claim under the Employment Rights Act 1996.[3]The claimant’s application to strike out the respondent’s Response on the grounds of non-compliance with an order for production of an agreed bundle is refused. Case No. 2404472/2018 ORDERS Employment Tribunals Rules of Procedure 2013 Rule 53(1)(a)[1]The final hearing of the claimant’s unfair dismissal claim is listed before a Judge sitting alone for two days on 15 & 16 July 2019 at Manchester Employment Tribunal, Alexandra House, 14-22 The Parsonage, Manchester, M3 2JA commencing at 10.00am each day or as soon after that time as the Tribunal can hear it.[2]The hearing will deal with both liability and, if necessary, any remedy hearing unless the Tribunal hearing the case determines otherwise.[3]The following directions are made so as to amend or supplement the orders set out in the Tribunal’s Case Management Orders of 14 May 2018, which shall apply except as amended below.[4]The respondent is to provide an agreed bundle to the claimant by no later than 29 January 2019.[5]The claimant is to provide the respondent and the Tribunal with an updated schedule of loss by no later than 29 January 2019.[6]The parties are to exchange witness statements setting out the evidence of the witnesses they intend to rely on by no later than 1 March 2019.
REASONS
The Judgment of the Tribunal was given to the parties at the hearing on 15 January 2019. The claimant requested written reasons in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, which are set out below.
Introduction
[1]The claimant’s Application to the Tribunal was received on 7 March 2018 and comprised claims for constructive unfair dismissal, sex discrimination, and breach of contract relating to notice pay. Information about the complaints was set out in “Schedule A” attached to the form ET1. It referred (without providing details) to “a sustained campaign of harassment and bullying” by Ms Elizabeth Acker, an employee of the respondent, and said this was prohibited conduct under section 26 Equality Act 2010. The repudiatory conduct leading to the claimant’s resignation was linked to the respondent’s handling of her grievance about the alleged bullying and harassment, and this was described as conduct “based on the claimant’s sex”. In making this assertion the claimant relied on the fact that Ms Acker “would never carry out a course of conduct and has never carried out a course of conduct against a male colleague”.[2]In its Response the respondent defended all claims and sought further information about the alleged harassment. It also identified issues about whether the discrimination claim was brought in time, and stated an intention to apply to strike out the claims or seek a deposit order. The respondent reserved its position on the time points, which were not addressed directly today.[3]The purpose of this Preliminary Hearing was to hear applications from both parties. The respondent applied for an order striking out the claimant’s sex discrimination claim (or claims), or alternatively a deposit order on the grounds that such claims had little reasonable prospect of success. The respondent sought to strike out the claims only so far as they were brought under the Equality Act 2010 (‘the Act’), leaving undisturbed the claims for breach of contract and for constructive unfair dismissal under the Employment Rights Act 1996.[4]The claimant’s application to strike out the Response was also heard today. The grounds for this were that an agreed bundle was not produced by the respondent in compliance with Case Management Orders made in May 2018.[5]The claimant was prepared to give evidence to the Tribunal about her means, for the purpose of the deposit order application, though this became unnecessary when the respondent accepted her figures and her disposable income of £455 per month. A small agreed bundle was provided and included key documents including the claimant’s grievance letter dated 3 November 2017, and correspondence between the parties’ representatives.[6]The parties were expecting this hearing to take place on 7 December 2018, and had agreed between themselves (without involving the Tribunal) that the witness statements and an agreed bundle for the final hearing would be produced at the end of December, by which time the scope of the claims would be clearer. Once notified by the Tribunal that the 7 December hearing could not proceed through lack of judges, the respondent made an immediate application to vacate the substantive hearing of these claims which was due to take place on 15-17 January 2019. Again for reasons relating to Tribunal resources, it was not until 8 January 2019 that this postponement was agreed by the Tribunal.[7]The claimant, meanwhile, had been understandably concerned to have the bundle in December 2018 and finalise preparation for the final hearing in January, but rather than take up an invitation from the respondent on 28 December to send her a copy of the bundle, she applied to strike out the Response. By 8 January 2019 the parties were aware that the final hearing had been postponed to some uncertain future date. Nevertheless, the claimant wished to proceed with her application today.[8]The applications required the Tribunal to consider a number of questions:(1) What discrimination claims have actually been pleaded?(2) Is a mere assertion of sex discrimination enough, or does the claimant need to say more to persuade the Tribunal that her claims have a reasonable prospect of success and should continue?(3) Do the multiple documents setting out the claimant’s claims clarify the pleaded case in the original ET1, or do they add new claims to the scope of the proceedings? If the latter, should such claims be introduced by way of amendment (although no application to amend was in front of the Tribunal today)?(4) On the face of it, do disputes of fact exist which are central to the discriminations claims and need to be tested at a full merits hearing?(5) Alternatively, can the Tribunal be confident that no further evidence relating to the issues as pleaded would affect a decision to strike out claims?(6) If it cannot be said that the claimant’s discrimination claims have no reasonable prospect of success, should a deposit order be made on the grounds that they have little prospect of success?(7) Is it no longer possible to have a fair trial of the issues given the respondent’s delayed compliance with the order to serve an agreed bundle on the claimant by 20 August 2018? The pleadings[9]In total the claimant produced three documents purporting to set out her claims. The content (so far as relevant to the respondent’s strike out application) can be summarised by reference to each document, as follows.(1) Application to the Tribunal dated 7 March 2018, Schedule A. This identified a “sustained campaign of harassment and bullying” by Ms Acker amounting to prohibited conduct under section 26 of the Act. The conduct was “based on the claimant’s sex” because Ms Acker “would never carry out a course of conduct and has never carried out a course of conduct against a male colleague”.(2) Full particulars of the claimant’s allegation of sex discrimination dated 11 May 2018 This repeated the assertion in the ET1 about a “sustained campaign of harassment and bullying” in breach of section 26(1) of the Act and added that this “created an intimidating hostile degrading, humiliating or offensive environment” for the claimant. The conduct was said to be “related to the claimant’s protective [sic] characteristic namely her sex” as Ms Acker “had never displayed such conduct against a male colleague of hers”, nor had Ms Acker “been the subject of a grievance made by a male colleague”.(3) Schedule of Allegations dated 4 June 2018 This table identified six allegations, giving in each case the date of the allegation, the alleged perpetrator, the nature of the “less favourable treatment”, the “ground/reason why” and finally the comparator. It did not identify the Equality Act provisions relied on, though this was explored during today’s hearing.[10]The content of the Schedule of Allegations requires further scrutiny, by reference to each of the six allegations:(1) Allegation 1 – A sustained campaign of harassment and bullying by Ms Acker between 28 February 2017 and 7 August 2017, the reason being the claimant’s sex, and naming a hypothetical male comparator. This reflects the original allegation but still no details of dates or events are provided. As a comparator is not needed for a section 26 claim, this raises the question whether the claimant is also seeking to treat this as a direct discrimination claim under section 13.(2) Allegation 2 – A failure by Marc Burns on 24 August 2017 to “comply with the respondent’s grievance procedure dealing with informal grievance”. The stated “reason” is that the claimant made an allegation that Ms Acker had contravened the Act, and a hypothetical comparator is identified as someone who had not made such an allegation. While not stated, this allegation has the appearance of a victimisation claim under section 27 of the Act, for which a comparator is again unnecessary.(3) Allegation 3 – A failure by Amanda Harris on 11 October 2017 to deal with the claimant’s grievance concerning Ms Acker at a welfare hearing. The same (unnecessary) hypothetical comparator is named as for Allegation 2. This too has the appearance of a victimisation claim under section 27.(4) Allegation 4 – A failure on 9 November 2017 by Ms Harris to treat a meeting of that date as a grievance hearing, “instead suggesting a formal meeting and prejudging its outcome namely that of mediation”. The reason for the treatment and the hypothetical comparator mirror Allegations 2 and 3, suggesting this too is intended to be a section 27 victimisation claim.(5) Allegation 5 – That the grievance hearing was not held in good faith by Nicola Towns on 23 November 2017, and a letter dated 4 December 2017 recommended mediation and a conversation between the claimant and Ms Acker, “an outcome intimated at the meeting on 9 November 2017”. Although the box for the “reason” for the treatment is blank, the same hypothetical comparator is given as for Allegations 2, 3 and 4, suggesting a further victimisation claim is being set out.(6) Allegation 6 – This relates to the respondent’s alleged dismissal of the claimant on 8 December 2017, “which was in the circumstances unfair”. The assertion has the appearance of a further section 27 victimisation claim because it refers to the same allegation that Ms Acker had contravened the Act, and the hypothetical comparator is again a person who had not made such an allegation. It could also be a discriminatory dismissal claim under section 39.[11]The Tribunal had made the claimant aware of the need to fully particularise her claims at an early stage, initially requesting such detail prior to a case management preliminary hearing on 14 May 2018. At that hearing Judge Feeney noted that the sex discrimination claim was unparticularised and that the claimant’s “Full Particulars” document was insufficiently detailed. The claimant has been represented throughout by Mr Broomhead. He told Judge Feeney that in her discrimination claim his client relied on the grievance and the failure to uphold it, in response to which the Judge pointed out that even if the alleged harassment amounted to discriminatory conduct, this does not necessarily mean the respondent’s handling of the grievance could be assumed to be discriminatory in nature. She ordered that the claimant provide: “a schedule of all the allegations describing as far as possible when they occurred, who was responsible for the event, whether there were any witnesses, and setting out what type of discrimination is relied on.”[12]The product of that order was the Schedule of Allegations dated 4 June 2018. It is apparent from the face of that document that the six allegations go beyond providing further particulars of matters already pleaded in the ET1. Given that the original pleading alleged discrimination only in the form of harassment contrary to section 26 of the Act, it could be expected that the further particulars would amplify and clarify that claim. It does not. Instead, the document suggests the claims also fall under section 13 (direct discrimination) and section 27 (victimisation). Indeed, Mr Broomhouse confirmed today that he does wish to pursue claims under those provisions as well as under section 26. This judgment shall therefore refer to the discrimination claims in the plural, notwithstanding the dispute about whether the claims under sections 13 and 27 of the Act had been properly brought.[13]In dealing with the harassment claim under section 26, the Schedule of Allegations repeated that there was a “sustained campaign of bullying and harassment” between 28 February 2017 and 7 August 2017. It said nothing else about the harassment allegation (other than unnecessarily to identify a hypothetical male comparator), and made no attempt to describe the individual incidents of harassment.[14]Although not part of the pleadings, the Tribunal was taken to the claimant’s grievance letter dated 3 November 2017. In it the claimant referred to her concerns about Ms Acker’s “attitude and rude comments” towards her and requested that the respondent find a resolution. The letter was accompanied by a note headed “Some of the comments that have been made to me by Elizabeth”, referring to occasions when Ms Acker was said to have “snapped” at her or spoken “abruptly” or insensitively. Nowhere in the letter or note was any reference made to the treatment being related to the claimant’s sex, nor was there any suggestion (even impliedly) that the conduct was in breach of the Equality Act. Submissions on the respondent’s application[15]The application to strike out the discrimination claims was made under Rule 37(1)(a) Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (‘the Rules’), on the grounds that these claims as pleaded have no reasonable prospect of success. The respondent also relied on Rule 53(1)(c) as giving the Tribunal the power to make such an order at a preliminary hearing, as well as referring the Tribunal to the principles of the overriding objective set out in Rule 2.[16]In his submissions Mr Siddall referred the Tribunal to a number of key cases, including North Glamorgan NHS Trust v Ezsias 2007 IRLR 603 on the approach to be taken to the question whether the claims have a reasonable prospect of success. Relying on the judgment of Maurice Kay LJ, he submitted that the test is: “whether an application has a realistic as opposed to a merely fanciful prospect of success”.[17]He went on to refer to these passages from the Court of Appeal’s judgment: “… I too accept that there may be cases which embrace disputed facts but which nevertheless may justify striking out on the basis of their having no reasonable prospect of success […]. However, what is important is the particular nature and scope of the factual dispute in question.” [paragraph 27] “It would only be in an exceptional case that an application to an Employment Tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the Applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation.” [paragraph 29][18]The EAT authority in Chandock v Tirkey 2015 ICR 527 was also relied on, in particular the following passages: “In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it; so that they can tell if a tribunal may have lost jurisdiction on time grounds; so that the costs incurred can be kept to those which are proportionate; so that the time needed for a case, and the expenditure which goes hand in hand with it, can be provided for both by the parties and by the tribunal itself, and enable care to be taken that any one case does not deprive others of their fair share of the resources of the system. It should provide for focus on the central issues. That is why there is a system of claim and response, and why an employment tribunal should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings.” [paragraph 18] “This stops short of a blanket ban on strike-out applications succeeding in discrimination claims. There may still be occasions when a claim can properly be struck out—where, for instance, there is a time bar to jurisdiction, and no evidence is advanced that it would be just and equitable to extend time; or where, on the case as pleaded, there is really no more than an assertion of a difference of treatment and a difference of protected characteristic which (per Mummery LJ in Madarassy v Nomura International plc [2007] ICR 867, para 56): “only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.” Or claims may have been brought so repetitively concerning the same essential circumstances that a further claim (or response) is an abuse. There may well be other examples, too: but the general approach remains that the exercise of a discretion to strike out a claim should be sparing and cautious. Nor is this general position affected by hearing some evidence, as is often the case when deciding a preliminary issue, unless a tribunal can be confident that no further evidence advanced at a later hearing, which is within the scope of the issues raised by the pleadings, would affect the decision.” [paragraph 20][19]The respondent acknowledged in its submissions that a strike out on the basis of facts is rarely appropriate, though it is in this case, citing Anyanwu v South Bank Students Union 2001 ICR 291: “Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest.” [paragraph 24][20]The alternative application for a deposit order was made under Rule 39(1) of the Rules, relying on the claims having little (as opposed to no) reasonable prospect of success. The respondent cited Van Rensburg v Royal Borough of Kingston 2007 UKEAT/95/07 in support of the proposition that the test is a lower one than applied in Ezsias. Quoting paragraphs 26 and 27 of the judgment: “Ezsias then demonstrates that disputes over matters of fact, including a provisional assessment of credibility, can in an exceptional case be taken into consideration even when a strike out is considered pursuant to r 18(7). It would be very surprising if the power of the tribunal to order the very much more limited sanction of a small deposit did not allow for a similar assessment, particularly since in each case the tribunal is assessing the prospects of success, albeit to different standards. Moreover, the test of little prospect of success in r 20(1) is plainly not as rigorous as the test that the claim has no reasonable prospect of success found in r 18(7). It follows that a tribunal has a greater leeway when considering whether or not to order a deposit. Needless to say, it must have a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim or response.”[21]The Tribunal was referred to the more recent authority of Hemdan v Ishmail 2017 IRLR 228 on the question of the lower threshold test to be applied to a deposit order application. This judgment (in paragraph 13) sets out some relevant guidance on the approach to be taken to an assessment of the facts in a case: “The assessment of the likelihood of a party being able to establish facts essential to his or her case is a summary assessment intended to avoid cost and delay. Having regard to the purpose of a deposit order, namely to avoid the opposing party incurring cost, time and anxiety in dealing with a point on its merits that has little reasonable prospect of success, a mini-trial of the facts is to be avoided, just as it is to be avoided on a strike out application, because it defeats the object of the exercise. Where, for example as in this case, the preliminary hearing to consider whether deposit orders should be made was listed for three days, we question how consistent that is with the overriding objective. If there is a core factual conflict it should properly be resolved at a full merits hearing where evidence is heard and tested.”[22]In summarising his submissions, Mr Siddall included the following points:(1) The claimant had failed despite three attempts to particularise her discrimination claims.(2) The allegations of harassment were still undefined.(3) The claimant’s grievance letter of 3 November 2017 disclosed no case of gender-based harassment.(4) No protected act was identified as regards items 2-6 in the Schedule of Allegations.(5) The pleaded case raised no evidential basis for suggesting that any protected act was in the mind of the respondent’s decision-makers.[23]The claimant’s submissions in answer to the strike out application referred the Tribunal to some of the same case law, including Anyanwu and Ezsias. In addition, Mr Broomhead relied on Tayside Public Transport v Reilly 2012 IRLR 755, in which the Court of Session overturned a decision to strike out an unfair dismissal claim in circumstances where there were disputed facts which could be “properly resolved only by a hearing before a full tribunal”. He also relied on Dossen v Headcount Resources Ltd 2013 UKEAT 0483/12, in which the EAT cited paragraph 24 of Anyanwu (quoted above). In paragraph 13 of its judgment the EAT referred to the following passage in Ezsias: “It seems to me that on any basis there is a crucial core of disputed facts in this case that is not susceptible to determination otherwise than by hearing and evaluating the evidence. It was an error of law for the Employment Tribunal to decide otherwise.”[24]Like Mr Siddall, Mr Broomhead drew attention to paragraph 29 of the Ezsias judgment (quoted above), arguing that a strike out order should be made only in an exceptional case. He also referred the Tribunal to paragraph 14 of Dossen: “In this case there was without doubt a “crucial core of disputed facts”. Indeed, there was virtually no common ground between the case for Mrs Dossen and the case for Mr Colman on the question of sex and associative race discrimination. The two allegations that were struck out were part of that crucial core; they were not in any sense peripheral. It would therefore require an exceptional case before striking-out would be appropriate. The Employment Judge was alive to the point that discrimination cases are fact-sensitive. He struck these allegations out because he considered them incapable of proof as a matter of fact in the light of the documents.”[25]Mr Broomhead urged the Tribunal not to strike out the discrimination claims as this would be an exercise of a draconian power. He relied on the words of caution expressed in paragraph 20 of Chandock, pointing out that the power to strike out should be used cautiously and sparingly.[26]In relation to the deposit order application the claimant referred the Tribunal to Van Rensburg and Hemdan, and to several other authorities on questions relating to the correct legal test and the party’s ability to pay. He summarised his submissions as follows:(1) A Tribunal can make a sensible summary assessment on disputes of fact in some cases, but not in other cases which would involve disproportionate steps such as holding a mini-trial.(2) Where the central facts are in dispute, a claim should be struck out only in the most exceptional circumstances.(3) The Tribunal has a discretion to make a deposit order if it forms the view that a claim has little reasonable prospect of success.[27]During his submissions Mr Broomhead was invited repeatedly to identify what central facts were in dispute, such as to support his argument that the claimant’s discrimination claims should be aired fully at a final hearing. In answer, he referred in broad terms to:(1) the interactions between the claimant and Ms Acker, referring to the grievance outcome letter dated 4 December 2017;(2) the unsatisfactory handling of the grievance, including the lack of action by managers and the fact that the respondent did not “nip the bullying and harassment in the bud”;(3) the disagreement about whether mediation should take place or not.[28]When asked what facts brought the claims within the scope of the Equality Act, Mr Broomhead replied that the grievance “implied” that the bullying and harassment was about sex discrimination because the claimant is a woman and because other women had also complained about Ms Acker. The Tribunal took Mr Broomhead through each item in the Schedule of allegations and asked him to identify the factual basis for saying it was a claim which could be brought under the Act. Mr Broomhead was unable to identify any such facts. In discussion about how the 3 November 2017 grievance letter identified any claim under the Act, Mr Broomhead commented that the claimant “did not know what Elizabeth Acker’s motives were for the conduct”. Conclusions on the scope of the pleaded case[29]The application was to strike out all claims brought under the Equality Act 2010, which required the Tribunal first to establish exactly what claims had been properly brought. The sequence of documents by which the claimant sought to plead her claims has already been recited in detail. It comprised the ET1 with its attached Schedule A, the Full Particulars of the Allegations of Sex Discrimination, and the Schedule of Allegations.[30]The ET1 identified only one claim under the Act, namely unlawful harassment contrary to section 26. The person said to have harassed the claimant was Ms Acker. The allegation was a discrete one relating to the conduct of one individual over a particular period of a few months in 2017. That allegation was the only reference to a claim under the Act, and section 26 was explicitly mentioned. No reference was made to any other type of discrimination claim, nor did sections 13 or 27 feature in the pleading. Even in the Schedule of Allegations served some months later, the claimant made no reference to particular sections of the Act. Importantly, no facts were set out in any of the three pleading documents which could form the basis for any claims for direct discrimination or victimisation. Notably, no attempt was made to identify the factual basis for alleging that the claimant had done a protected act for the purposes of a victimisation claim. Mr Broomhead’s submissions today added nothing to those omissions.[31]Following Chandock, it is important not to treat extraneous documents as part of the pleaded case, and the Tribunal has not done so. But even if the grievance letter of 3 November 2017 were taken into account, that would not assist the claimant because there is nothing in her description of Ms Acker’s comments which remotely suggests the alleged harassment was related to her sex.[32]The subsequent pleading documents did not add anything to the allegation of harassment, simply restating what had been said in the ET1. The Schedule of Allegations directed the respondent to aspects of its handling of the grievance, but left it no wiser as to the detail of Ms Acker’s alleged conduct.[33]The additional information provided in the Schedule of Allegations cannot be characterised as further details of the existing harassment claim. Instead, wholly new allegations and causes of action were raised for the first time some three months after the claim was brought. To introduce new causes of action would require an application to amend the claim, and no such application was made. If it had, the Tribunal would have had to consider the time elapsed since the events took place in deciding whether to allow new claims to be added, as they were likely to be out of time.[34]The five new allegations in the Schedule of Allegations related to incidents between 24 August 2017 and 8 December 2017. The information simply outlined bare factual complaints about the handling of the grievance, and added an entirely new claim that the claimant’s dismissal was discriminatory. If a claim were to proceed under section 39(7)(c) of the Act, this would be a wholly different argument than a constructive unfair dismissal claim in that it would require evidence from which a Tribunal could infer discrimination.[35]No provisions of the Act were set out in the Schedule of Allegations, though it was suggested that the five new allegations amounted to victimisation claims under section 27 of the Act, the protected act being a bare assertion that the claimant had “made an allegation that the said Elizabeth Acker had contravened the Equality Act 2010”. No information was provided then or today about the facts underpinning that assertion. It is not a pleading which the respondent can be expected to understand or against which it can be expected to defend itself.[36]The Tribunal is satisfied that the five new allegations in the Schedule of Allegations are of a quite different kind from the harassment claim pleaded in the ET1. They do not clarify or amplify the harassing conduct. They seek to enlarge the number of causes of action from a section 26 claim only, to claims of direct discrimination, victimisation and discriminatory dismissal. The claimant has made three attempts in writing to help the respondent and the Tribunal understand the nature of the Equality Act claims and even in the face of an application to strike out, has still failed to produce any information suggesting such claims have any factual basis or any merit. Without hearing full evidence today, the Tribunal would nevertheless expect the claimant to be able to point to the evidence she intends to bring to a final hearing to support her bare assertions. The claimant has unambiguously been unable to do so.[37]To the extent that the claimant is seeking to add any claims under the Act other than a section 26 harassment claim, the Tribunal’s conclusion is that mere service of a Schedule of Allegations some months after instituting the claim does not permit the claimant to add new causes of action. They were not intimated in the original claim, and neither in that document nor in the later Schedule of Allegations were any facts set out which could form the basis of such new claims.[38]While the Schedule of Allegations did purport to identify victimisation claims under section 27, and raised the possibility (confirmed today) of an attempt to bring a claim under section 13, those are separate and distinct causes of action. In order for those other claims to form part of the pleaded case, the claimant would have to apply to add them by way of amendment, an application which Mr Broomhead has explicitly declined to make and which would no doubt be resisted by the respondent, not least because of the delay and consequential issues about the claims being out of time.[39]Accordingly, the Tribunal concludes that the only claim under the Act which has been validly identified in the pleadings is the harassment claim under section 26. No claims have been properly brought under sections 13, 27 or 39 of the Act, and no application to amend the ET1 to add those new claims has been made. Conclusions on the respondent’s applications[40]Having determined that the scope of the discrimination claims properly pleaded is limited to the harassment claim, the Tribunal has gone on to assess the merits of allowing that claim to continue to a full hearing.[41]Mr Broomhead on the claimant's behalf gave an account in his submissions in an effort to identify, at the Tribunal’s request, the nature of the claims and in particular why it was important for a future Tribunal to hear evidence about disputed facts. In essence the disputed facts he identified came down to the following:(1) The interactions between the claimant and Ms Acker. He referred to the grievance outcome letter dated 4 December 2017 which acknowledges that Ms Acker was spoken to, but that letter does not show that she disputed making any comments. What she did say, as expressed by the author of the letter, is that she did not intend any malice by her comments. In other words, it is not a case where the making of the comments was in dispute so much as a question of what interpretation should be placed on them.(2) The lack of action by managers. Initially Mr Broomhead submitted that the claimant had “implied” to Mr Burns that the problems she was having with Ms Acker were about sex discrimination, though later in his submissions he conceded that the claimant had not asserted her rights under the Act then or at any time during her employment. He said the claimant did not know at the time what Ms Acker’s motives were.(3) The disagreement about whether or not mediation should take place. The facts surrounding that disagreement were not in dispute as far as the Tribunal could see. Mediation was offered and declined. The rights and wrongs of that argument will be for another Tribunal to assess, but from the information before me today, no dispute of core facts could be discerned from that or the other matters relied on by the claimant.[42]In making the concession that the claimant had not asserted her rights under the Act at the time, Mr Broomhead said this allegation was raised only after the claimant had been advised by him. The Tribunal has no difficulty with the idea that employees cannot be expected to know and understand their statutory rights, nor to be able to articulate the law. That said, it can be expected that an employee who believes she is being harassed because she is a woman to understand that fact, and to be able to say to her managers, ‘This is because I’m a woman’. It does not need any knowledge of the law.[43]On her own case the claimant alleges that she was bullied and harassed, but even by the time of her formal grievance she did not assert that her gender was the reason for the bullying and harassment. This is at odds with the assertion of discriminatory dismissal in the Schedule of Allegations.[44]The question posed by Ezsias is whether the discrimination claim – meaning here the harassment allegation – has a realistic rather than fanciful prospect of success. Where there are disputed facts it is necessary for the Tribunal to examine the particular nature and scope of the dispute. The Tribunal sought to do so with the benefit of Mr Broomhead’s submissions. The scope of the factual dispute is very limited in this case, given the absence of any pleaded details about the alleged bullying and harassment. The only source of information about the detail is in the claimant’s grievance letter and its attached examples of comments which she described as “rude” or “abrupt”. That letter does not form part of the pleadings, but even if it did, it discloses nothing from which a Tribunal could conclude that the claimant had been subjected to discriminatory harassment.[45]Whether the facts as described in the grievance letter were denied or admitted by the respondent, this would make no difference to the question whether the treatment amounted to a breach of the Act. If there were a proper factual basis for alleging that the harassment related to sex, beyond a mere assertion to this effect, this Tribunal would have expected to be made aware of it. The nature and extent of any dispute about that key issue could then have been evaluated. The difficulty for the claimant is that she was wholly unable to explain what facts a future Tribunal would need to hear evidence about, in order to determine the merits of a section 26 claim.[46]Anyanwu makes clear that a strike out on the basis of disputed facts is rarely appropriate, and the Tribunal is mindful of the fact that this is especially important when dealing with discrimination allegations. That said, the guidance in Ezsias and Hemdan do permit the Tribunal to make a summary assessment of the facts as presented and as pleaded, without holding a mini-trial on facts. In Chandock the court envisaged that there may be cases where it is appropriate to strike out because they consist of a bare assertion of discrimination based merely on a difference of treatment and a difference of protected characteristic. That is exactly the case here.[47]It is therefore permissible and proportionate to carry out a sensible assessment of the available facts in order to determine the likelihood of the claimant being able to establish facts essential to her discrimination claims, per Hemdan. There is no core conflict of facts relevant to the discrimination allegations which needs to be resolved at a full merits hearing. The Tribunal was able to reach its decision on the strength of the pleadings, read alongside the claimant’s grievance letter. Mr Broomhead was given multiple opportunities to identify the central or core facts relevant to the Equality Act claims which meant this case was not susceptible to determine other than by an evaluation of the evidence at a final hearing. He was unable to do so. Like the Tribunal in Dossen, this Tribunal considers the core factual allegation of harassment to be incapable of proving sex discrimination at a full hearing.[48]The Tribunal has taken into account the possibility of making orders for further particulars of the claims to be provided, and asked itself whether any lack of clarity in the pleadings could be cured in this way rather than take the ultimate decision to strike out. Weighing up the balance of fairness and proportionality between the parties, and the overriding objective, the Tribunal concludes that the harassment claim falls within the exceptional cases which merit a striking out order following a summary assessment of the facts. Despite having three opportunities to formulate her claims with the assistance of a professional representative, the claimant has been wholly unable to do so. A further case management order would evidently achieve nothing more.[49]Although it is clear that a striking out application should be approached with caution, the Tribunal is not satisfied there is any likelihood of the claimant being able to establish the facts which would be essential to her harassment claim. There is therefore a proper basis upon which to strike out the discrimination claim.[50]Having concluded that the scope of the pleaded claims is limited to the harassment claim under section 26, the Tribunal has also considered whether the position would be any different if the pleaded claims were to include those intimated under sections 13, 27 and 39 of the Act. There is nothing about the limited facts pleaded in support of those claims which points to an arguable sex discrimination case, and the Tribunal concludes that none of them have a reasonable prospect of success. Like the harassment allegation, they are bare assertions of fact which say nothing at all about when and how any protected act was carried out so as to underpin a victimisation claim. The Tribunal’s reservations about the lack of any factual basis to support the allegation of harassment apply equally to the other claims which the claimant has sought to bring forward under the Act.[51]Having decided to strike out the claimant’s claim under the Act, it is not necessary to determine the respondent’s application for a deposit order under Rule 39(1). Had it been so, the Tribunal would have had no difficulty in concluding that any discrimination claims had little prospect of success, such as to warrant the making of a meaningful deposit order. Conclusions on the claimant’s application[52]The claimant’s application to strike out the Response was made under Rule 37(1)(c) of the Rules on the grounds of the respondent’s non-compliance with the order to produce the agreed bundle on time. The relevant test is whether it is no longer possible to hold a fair trial of the issues. In considering this application the Tribunal also had to consider whether other steps were available to it which could cure the problem, for example by the provision of a bundle with an extension of time to the original order.[53]It was not in dispute that the bundle was not provided to the claimant in accordance with the case management order of 14 May 2018, which required the respondent to prepare an agreed bundle and provide a copy to the claimant by 20 August 2018. The parties agreed to put that date back by some considerable time, to December 2018, and so the claimant cannot complain about the intervening period. The explanation for the delay in December 2018 required some scrutiny.[54]The claimant's application may well have been warranted at the time when it was made, although in the face of the respondent’s offer to send her a bundle on 28 December it is difficult to see what such an application could hope to achieve. That is all the more the case today, given that the parties have known since 8 January that the final hearing is not taking place this month.[55]It is also relevant to take into account the delays which the claimant caused or contributed to during the parties’ preparation for the final hearing, and the correspondence between the parties shows that the claimant has at times been slow to deal with the case preparation.[56]Circumstances changed after the date when this application was made, and from 8 January there was really no purpose in pursuing it. It is undoubtedly possible to keep the preparation of this hearing on track and ultimately to have a fair trial of the unfair dismissal claim. Mr Broomhead was unable to provide reasons why a fair trial would not be possible, or point to any other substantive argument why the response should be struck out. Indeed, his 10-page submission document made no reference to the point. The Tribunal is satisfied that the failure to produce a bundle in a timely way in no way impairs the ability to have a fair trial. The parties have already completed most of their preparation, including drafting witness statements, the finalisation of which is subject to the question whether the discrimination claims would be allowed to continue. There is therefore no question of the delay having any untoward impact on the claimant or on the future hearing.[57]Furthermore, the preparation of the bundle and the witness statements was liable to be directly affected by the outcome of this preliminary hearing. The respondent’s application was originally intended to be heard before the date for exchange of statements and provision of the bundle. If, as has turned out to be the case, the discrimination claims are struck out, then there is no need for those to be dealt with in the evidence.[58]While the respondent did not comply with the order on time, the correspondence shows that some delays were contributed to by the claimant. In any event the respondent was entitled to await the outcome of the preliminary hearing before finalising the bundle. It then offered to provide a bundle on 28 December, an offer which the claimant refused for no good reason. Having taken into account the overriding objective, especially proportionality, and the fact that case management orders can now be made to ensure the preparation is on track for a final hearing, the application to strike out the Response is refused.
Discussion and Conclusions
[59]The Employment Tribunal claim form sets out that the respondent’s failure to deal with the grievance in “good faith” was because Nicola Towns was not suitable and was ill qualified. The claimant also stated that the outcome of mediation was unrealistic and the claimant's position had not been taken into account. Elizabeth Acker Comments[60]The document submitted by the claimant with the letter of 3 November 2017 sets out the comments made by Elizabeth Acker. In evidence the claimant gave details of two further comments: that Elizabeth Acker had said that the claimant was as smarmy as James Knight, and that she had questioned why the claimant had a car park space. The Employment Tribunal application form does not set out the comments in detail, but at the meeting with Amanda Harris on 11 October 2017 the claimant mentions:(1) the comment that Elizabeth Acker made about the claimant doing passes instead of lugging boxes;(2) the comment that Elizabeth Acker made about the claimant speaking up;(3) the comment Elizabeth Acker made about her late father’s name; and(4) the comment Elizabeth Acker made about telling the claimant to shut up.[61]At Elizabeth Acker’s interview on 23 November 2017 she explained that she was joking and that she had known the claimant for years. Elizabeth Acker countered and said that she had sent texts to the claimant but has had no response. The notes reveal that Elizabeth Acker is amazed at the comments and in disbelief that the claimant has not spoken to her, and she subsequently agrees to mediation. I have not heard evidence from Elizabeth Acker, but Sarah Marshall was available to interpret the notes she took of that meeting.[62]I find that the comments were made, and that Elizabeth Acker does not dispute those that were put to her. Elizabeth Acker denied they were anything more than a joke. I accept that the claimant was upset by those comments.[63]The claimant’s fit notes record tiredness and fatigue, and at the welfare meeting the claimant was able to describe particular health issues for which she was undergoing tests. However, the claimant also attributed her absence to being unable to work with Elizabeth Acker, and therefore I conclude that at least part of the reason for the claimant's absence was Elizabeth Acker’s comments.[64]The claimant’s case is that the respondent’s subsequent handling of the grievance about those comments amounted to a fundamental breach of her contract. Was Nicola Towns a suitable grievance handler?[65]The claimant set out in her witness statement that Nicola Towns should not have heard the grievance because her husband was friendly with Elizabeth Acker. The Employment Tribunal claim form stated that Nicola Towns was “unsuitable and ill qualified”.[66]In evidence the claimant said she knew before the grievance that Nicola Towns’ husband was friendly with Elizabeth Acker. However, the claimant also acknowledged that she was accompanied at the grievance hearing and did not raise this as an issue prior to the grievance hearing.[67]Sarah Marshall said in evidence that she chose Nicola Towns to handle the grievance because Mark Burns had already tried to deal with the matter informally. Sarah Marshall felt that it would be better if the grievance was dealt with by an independent manager.[68]There is no requirement in the respondent’s grievance policy that the line manager deal with a grievance. It was Nicola Towns’ evidence that the only way her husband knew Elizabeth Acker was when Elizabeth Acker worked outside for two days per week. Nicola Towns believed she was independent.[69]It was also Nicola Towns’ evidence that she had appropriate experience and training to conduct the grievance and was assisted by Sarah Marshall an experienced HR adviser.[70]I find that Nicola Towns was a suitable grievance handler and qualified to deal with the claimant's grievance. Appointing Nicola Towns as the grievance handler was not a breach of the claimant’s contract. The grievance outcome[71]In her statement the claimant said that Nicola Towns’ offer of mediation mirrored that made by Amanda Harris during the welfare meeting and meant that Nicola Towns could not have carried out a proper investigation.[72]The claimant met with Nicola Towns and Sarah Marshall on 23 November 2017 to discuss the letter and the enclosure, and then Nicola Towns and Sarah Marshall met with Elizabeth Acker to discuss the complaint.[73]During the grievance hearing with the claimant she was asked what her expectation was, and she said she wanted Elizabeth Acker to be made aware. Nicola Towns made Elizabeth Acker aware at the meeting on 23 November 2017 and the notes record that Elizabeth Acker was shocked and hurt that the claimant had not raised this with her directly.[74]Nicola Towns and Sarah Marshall suggested mediation and the claimant said she would have to think about it at a later stage. Nicola Towns made it clear during the grievance hearing that just speaking to Elizabeth Acker or moving the claimant was not enough as the issue would remain unresolved between the two colleagues. Nicola Towns again suggested mediation and the claimant said she could not handle a meeting and wanted to sit somewhere else. The claimant said that mediation may be a possibility but it would all depend on her health.[75]In evidence the claimant said there was no need for the team to sit together and she could have sat somewhere else in a large office. It was the claimant's evidence that she was being pushed into mediation and she was not well enough, and she was upset that the respondent thought her complaints were trivial.[76]The claimant confirmed on receipt of the outcome that she was still considering mediation. However following her GP’s advice it was not something she could do, and she therefore decided to resign.[77]In evidence Nicola Towns said that the claimant was given an opportunity to discuss her grievance and put forward the points about Elizabeth Acker. Nicola Towns said that the conclusion, after speaking to both, was that the issue was minor and that disciplinary was not warranted. She also said that it was not necessary to speak to Mark Burns or Amanda Harris – she thought mediation would resolve the matter.[78]Nicola Towns gave evidence that in her experience mediation could lead to resolution where, with the support of HR, both employees are given an opportunity to say how they feel. Nicola Towns recalls that the claimant had said that mediation was a possibility and it was an option that could resolve the matters. Moving desks was not an option because the issue would remain unresolved.[79]Sarah Marshall was not just a notetaker, but she also asked questions and gave Nicola Towns advice. In evidence Sarah Marshall also recalled the claimant saying that mediation was a possibility as a solution, and she confirmed that after speaking with Elizabeth Acker and hearing Elizabeth Acker’s willingness to resolve the matter, that mediation was a solution. Sarah Marshall was of the view that the relationship was not irreparable. Sarah Marshall gave evidence that the outcome came two weeks after the meeting with the claimant, and that she felt that the claimant may, by that stage, be capable of mediation.[80]Nicola Towns did conduct an investigation of the claimant’s grievance. Nicola Towns spoke to both the claimant and Elizabeth Acker. The view taken by Nicola Towns, with the advice of Sarah Marshall, was that there had been a misunderstanding between two colleagues. It was acknowledged that the claimant was upset but a view was taken that the comments were trivial and minor. The respondent was entitled to take that view.[81]Both Nicola Towns and Sarah Marshall were experienced in handling grievances. Both had previous experience of mediations. Neither were aware of the content of the welfare meetings with Amanda Harris. Both only knew the claimant was off with tiredness and fatigue for which she was receiving tests. Nicola Towns was clear that moving the claimant was not an option, as it was highly likely both would come into contact and the matter would remain unresolved.[82]The claimant had not absolutely ruled out mediation: it was dependent on her health. Sarah Marshall hoped that two weeks on from the grievance hearing, the claimant might be able to meet with Elizabeth Acker. The suggestion of mediation as an outcome was not unrealistic in the circumstances. It was not a breach of the claimant's contract.[83]There was not a breach of the implied term of trust and confidence. There was a breakdown in the relationship between the claimant and Elizabeth Acker. The respondent attempted to resolve the matter through proper application of the grievance procedure. The claimant did not agree with the suggested resolution, but this does not mean there was a breach of the implied term.[84]The respondent was entitled to reach that outcome having spoken to both parties. A meeting with the claimant to discuss the outcome in person could have assisted. However, this was not required under the policy and nor was it an unreasonable position for the respondent to take.[85]The claimant was upset by the comments and was entitled to resign rather than to return to work with Elizabeth Acker. However, the claimant did not resign in response to a breach of the implied term of trust and confidence. The claims for constructive unfair dismissal and breach of contract therefore fail.
Discussion and Conclusions
[1]The respondent’s application for a costs order is granted.[2]The claimant is ordered to make a payment to the respondent, of £2500
Introduction
[1]This hearing follows judgment on liability in this case. The hearing was listed to hear and decide an application for costs made by the respondent. The liability hearing took place on 28-30 June 2021 and the reserved judgment was complaint of unfair (constructive) dismissal.[2]Mr Broomhead represented the claimant at that final hearing. Mr Wynne did not represent the respondent (the respondent then having been represented by Ms Davies of counsel). I was not the Employment Judge at that liability hearing. It was before Employment Judge Ainscough. This Hearing[3]The first part of this costs hearing was taken up with addressing my queries about the basis and terms of the respondent’s application for costs and whether I should proceed straightaway with the costs application. I comment on this below.[4]Having decided to proceed I heard Mr Wynne’s submissions supporting the application and Mr Broomhead’s submissions in response. In hearing those submissions it became clear that the respondent did not accept the claimant’s financial position was as she had stated in a financial statement document she had prepared and provided for the purpose of this hearing. Mr Broomhead told me that the claimant was willing to give oral evidence about the information in this statement and I decided therefore to allow that and to allow Mr Wynne to question the claimant.[5]Having heard from the claimant I then allowed both Mr Wynne and Mr Broomhead to make any further and final submissions before ending the hearing and reserving my decision.[6]I was provided with a paginated file of documents prepared for this costs hearing. References below to page numbers are to this file of documents.[7]The hearing was by Cloud Video Platform (“CVP”). Connections were good and I am satisfied that a fair hearing took place. My decision to proceed in hearing the costs application[8]At the beginning of this hearing I queried when a costs application had been made and what the basis of the application was. I had not seen any written costs application, and I was concerned to ensure that the procedure under rule 77 of the Employment Tribunals Rules of Procedure 2013 (“Rules”) was being followed. I was particularly concerned to ensure that the claimant had a reasonable opportunity to make representations in response to the respondent’s application.[9]I listened to the parties’ representations on this initial issue. Mr Wynne was also provided with some time to take instructions.[10]Mr Wynne (having taken instructions) informed me that the costs application was discussed at the end of the final hearing and this included a discussion about whether the application should be made on paper or orally at a hearing. The decision was made to list the case for a further hearing. That hearing was due to take place on 1 October 2021.[11]I also note from the Tribunal file that the hearing on 1 October 2021 was listed to hear and determine a costs application. That hearing was postponed on application by Mr Broomhead which he made on 7 September 2021. Mr Broomhead was involved in a different Tribunal case which was being heard on that same date in Liverpool. The postponement application was therefore understandable and granted for those reasons The hearing was postponed until 6 October 2021.[12]It was clear to Mr Broomhead that the I October hearing related to costs. His email of 7 September 2021 notes as follows: “Further to this matter and in particular the costs hearing listed for 1 October 2021, we would be obliged if you would accept this as our application for a postponement.”[13]The only ground provided for the postponement application was that Mr Broomhead was appearing as a representative in another case being heard on 1 October 2021. The application was not on the basis that the claimant was not ready to respond to the costs application and/or did not know why the respondent was applying for costs. Mr Broomhead’s application was granted and the costs hearing was moved to 6 October 2021.[14]I asked Mr Wynne what the grounds for the costs application are. Mr Wynne provided the following information:(1) The application is under rule 76(1)(a) of the Rules, namely on the basis that the claimant has acted “vexatiously, abusively, disruptively or otherwise unreasonably” in the conduct of the proceedings;(2) That the vexatious, abusive, disruptive or otherwise unreasonable conduct is the claimant's decision to reject settlement offers made to her during the course of the proceedings;(3) The terms of the settlement offers and the correspondence relevant to them are well-known by the claimant and Mr Broomhead and are contained in the bundle of documents prepared for this hearing and provided shortly before the hearing.[15]For the claimant Mr Broomhead stated that no application for costs had been made. He said that the respondent was required to provide a written application and it had not done so. He also noted that the respondent was now out of time to make such an application, although appeared to accept my reference to rule 77 which permits an application for a costs order “at any stage up to 28 days after the date on which the Judgment finally determining the proceedings in respect of that party was sent to the parties”. The Judgment had only been sent on 15 September 2021.[16]I decided to proceed with the application. These are my reasons:(1) The claimant and her representative are in attendance knowing that they are here to respond to the respondent’s costs application and ready to deal with it. By way of preparation the claimant has provided a statement of means.(2) I am satisfied that an application for costs was made at the end of the final hearing on 30 June 2021. Although there is no record of that application in the Judgment, the case was listed for a further hearing specifically to hear and determine costs, and I am satisfied therefore that an application was made on 30 June 2021 even though judgment had not by that stage been given.(3) An application under Rule 76 does not have to be made in writing although of course putting an application in writing makes clear the reasons for an application. In this case, the basis for the respondent’s costs application is set out in correspondence between the parties marked as “without prejudice save as to costs” and included in the bundle ( at pages 65 to 70). I was satisfied that the claimant and her representative understood well before this hearing, why the application was being made and that they have a reasonable opportunity to make representations in response to the application.(4) On 7 September 2021, when making his application for a postponement, Mr Broomhead did not raise any concerns about not knowing the basis of the application or needing more information.[17]In these initial discussions Mr Wynne also told the claimant and me that whilst there was a Schedule of Costs (pages 33 and 34 of the bundle) totalling £51,348.13 the respondent’s application was limited to £20,000 by way of a summary assessment. The application for a costs order[18]Two settlement proposals made by Bird and Bird (on behalf of the respondent) are central to the application for costs and I set them out below. The first proposal was sent shortly after a preliminary hearing had taken place and the claimant’s complaints of discrimination had been struck out for having no reasonable prospects of success. The remaining complaint was for unfair (constructive) dismissal. Proposal One- relevant extracts On 7 June 2018, you provided the Claimant's initial Schedule of Loss pursuant to which she sought to claim a sum of £4,558 in economic losses made up of:(i) Notice Pay (£1,288);(ii) Basic Award (£2,340);(iii) Compensatory Award (£330); and(iv) Loss of Statutory Rights (£600). The Schedule of Loss also claimed further sums for injury to feelings, aggravated damages and personal injury and, whilst these were not particularised or quantified, the Schedule confirmed that injury to feelings were placed within the middle "Vento" band. Following a Preliminary Hearing on 15 January 2019, the Claimant's claims of sex discrimination were struck out and the Claimant was Ordered to provide an updated Schedule of Loss. This was attached to your email to this firm on 19 February 2019. As expected, the updated Schedule had deleted all sums contingent on the Claimant succeeding with her claim(s) of sex discrimination; however, we were extremely confused by the addition of the sum of £7,240.10 made up of alleged unpaid wages between August – December 2017. ………………….. ..it is clear that the Claimant's best case is that she succeeds with her claim of constructive unfair dismissal and receives full compensation claimed, i.e. £4,558. This is extremely unlikely (for the reasons articulated in correspondence to date and in the Respondent's Grounds of Resistance); however, on an exceptional basis and without any admission of liability, the Respondent is prepared to resolve matters on a commercial basis and pay the Claimant the sum of £4,558 in full and final settlement of her claims. The Respondent's offer is subject to the Claimant signing a Settlement Agreement in terms satisfactory to the Respondent, a copy of which will be provided to you when we have received the Claimant's in principle acceptance. As the Respondent is offering the Claimant the maximum amount that she could recover in these proceedings, should the Claimant reject the offer the Respondent will contend that this is conduct that is vexatious, abusive, disruptive or otherwise unreasonable and reserves its right to pursue an application for costs irrespective whether the Claimant is ultimately successful with her claim. Should it transpire that the Claimant rejects the offer on your advice, the Respondent reserves its right to pursue an order for wasted costs.[19]Proposal one was headed “without prejudice and subject to contract, save as to costs.”[20]Mr Broomhead’s response to proposal one noted that the claimant was going to appeal the outcome of the preliminary hearing which had struck out the claimant’s discrimination claims. his response included the following:- Whilst we are keen as you are to settle this claim we will not do so at any price, and any settlement would have take into our client's possible success in her appeal in order to bring this matter to finality. We will of course take our client's instructions as to your client's offer, but we hope we have made our position clear and look forward to hearing from you.[21]Bird and Bird replied. Relevant extracts are below:- Your client has no reasonable or credible basis on which to pursue a claim of sex discrimination, either on the spurious and unparticularised allegations in her form ET1 and subsequent further pleadings or at all. This is why the claim of sex discrimination was struck out at the Preliminary Hearing. It is, of course, entirely a matter for your client as to whether to appeal but, again, there is no credible basis on which she could do so or that she could have any reasonable expectation of having the decision overturned. The Respondent has made an offer which, on the basis of her updated Schedule of Loss, is for the maximum amount that your client could recover from her unfair dismissal claim (notwithstanding that the Respondent's clear view that such claim also lacks any merit or substance). The Respondent is prepared to settle this matter on a commercial basis but is not prepared to pay your client more than she could recover on her best case and will not be held to ransom by the threat of an appeal. The Respondent is prepared to leave its offer open for acceptance for a further period of time in order that your client can properly consider her position. It will be withdrawn as soon as the Respondent is forced to incur further costs in preparing for the final Hearing in July or for EAT proceedings. Once withdrawn, the offer will not be repeated. As previously advised, in the event that your client does not accept the offer and then fails with her claim(s) and/or fails to recover more than the Respondent has offered (which, the Respondent would aver, is inevitable), the Respondent will proceed with an application for costs/wasted costs on the basis that your client's conduct has been vexatious, abusive, disruptive or otherwise unreasonable and all of its rights in this regard are fully and expressly reserved.[22]The claimant did not appeal the outcome of the preliminary hearing. I am not aware of any further response to proposal one but in any event, it was not accepted and the unfair dismissal claim continued to hearing. Proposal 2 – relevant extracts.[23]I have been provided with one email relevant to proposal 2 although it is clear other emails were generated. This email is dated 16 June 2021 and is from Bird and Bird to ACAS. It is headed “without prejudice save as to costs.” As we discussed earlier, the Respondent is confused as to the legal and factual basis on which the Claimant can reasonably expect to recover compensation at the level claimed in her Schedule of Loss or at the level in her settlement proposal below. For your benefit (and to explain the Respondent’s position), the Claimant’s Schedule of Loss compromises the following figures:a.£1,288 (notice pay);b.£2,340 (Basic Award);c.£330 (Compensatory Award);d.£600 (loss of statutory rights); ande.£7,240.10 (unpaid wages between August - December 2017). Whilst the Respondent does not consider there to be any merit in the Claimant's case, it is clear that the maximum compensation that could be recovered from a successful claim of constructive unfair dismissal is £4,558; this being the sum total of the (a) – (d) above. It was for this reason that the Respondent made an offer, without any admission of liability and on a purely commercial basis, to settle this matter for £4,558 on 1 March 2019 and 8 March 2019. These offers were not accepted as the Claimant sought a sum on the basis of her Schedule of Loss. However, as explained to Mr Broomhead, the Claimant has not brought a claim of unlawful deduction from wages and, since there has been no application to amend the pleaded case and as any such claim is now (significantly) out of time, there is no reasonable basis on which the Claimant can expect to be awarded the sum at (e) above (or any part thereof). In the interests of completeness, the Respondent disputes the factual basis on which such a claim would be pursued in any event. It is the Respondent’s position that seeking compensation (far) in excess of the Claimant’s best case is conduct that is vexatious, abusive, disruptive or otherwise unreasonable and that would justify an award of costs under rule 76(1)(a) of the Employment Tribunal Rules of Procedure. This is separate from the position (which the Respondent also takes) that the claim has no reasonable prospects of success; so as to justify an award of costs under rule 76(1)(b) of the Rules. The Respondent would, therefore, aver that the Claimant and her representative should be concerned about the prospects of an order for costs/wasted costs. We will provide the Claimant with a detailed Schedule of Costs in due course but she should be aware that they are likely to be substantial if the Hearing goes ahead and the Respondent reserves the right to apply for a formal Court assessment if necessary. The Respondent is not prepared to pay the Claimant compensation more than double the amount of her best case and so the proposal is rejected. The Respondent is, however, mindful of its obligations in accordance with the Overriding Objective to try and resolve matters without recourse to the Employment Tribunal. We are, therefore, instructed to put forward an offer of £2,500 in full and final settlement of this matter; subject to completion of a COT3 in a form that is satisfactory to the Respondent. The Respondent will also agree not to pursue an application for costs/wasted costs as a term of settlement. It is acknowledged that this offer is less than the £4,558 that the Claimant could have accepted 2 years’ ago but this is to reflect the costs that have been unreasonably and unnecessarily incurred. We can confirm that you are free to share this email with Mr Broomhead.[24]I am satisfied that the claimant’s representative also received this email on or about that date. It was not suggested otherwise and that would be ACAS’s standard practice.[25]I have not been provided with any response to proposal 2 but of course it was not accepted and the claim proceeded to final hearing. Respondent’s submissions in support of costs application[26]Mr Wynne referred to the Schedule of Costs at pages 33 and 34 noting that up to 21 March 2019 the respondent had incurred costs of £18,363.45. As at 22 June 2021 further costs had been incurred in preparing for the hearing and drafting witness statements. Following 22 June 2021 a brief fee of £8,250 (for the unfair dismissal claim listed for three days) was incurred, as were “refresher fees” (presumably for days 2 and 3) totalling £5,500.[27]The date of 21 March 2019 is significant as this was at or very shortly after the parties had received the outcome of a preliminary hearing which heard and decided on the respondent’s application to strike out discrimination complaints made by the claimant as part of this claim. The respondent’s application was successful in that the discrimination claims were struck out (I note that the Judgment and Reasons were sent to the parties on 6 March 2019). It was also at the time when offer one was still available for settlement. 28. 22 June 2021 is significant because proposal 2 was made at this stage and rejected. The costs following then were incurred because the claimant had decided to reject proposal 2.[29]There are three stages to an Employment Tribunal’s decision as to whether to award a party costs:(1) Whether the threshold for making a costs award has been met (i.e. in this case whether the claimant has acted vexatiously, abusively, disruptively or otherwise unreasonably);(2) If so, whether it is appropriate to make a costs order;(3) If so, the amount of costs to order.[30]When a Tribunal exercises its discretion under stages (2) or (3) then it may (but is not required to) have regard to the paying party’s ability to pay.[31]Mr Wynne referred me to the email of 1 March 2019 which sets out proposal 1.[32]Mr Wynne noted that the background to this email was that the sex discrimination claims had just been struck out. The settlement offer was on an entirely commercial basis and was on that basis the respondent was prepared to pay all amounts properly due under the unfair dismissal claim.[33]As is apparent from the terms of the email, there was surprise that the claimant had added to her losses a figure of £7,240.10 being claimed for unpaid wages. As no application had been made to amend the claim to include a claim of, for example, an unauthorised deduction from wages, the respondent was at that stage offering the claimant everything that she was sensibly asking to receive in her unfair dismissal claim. Further, in its email the respondent’s solicitors explained why the claimant was not entitled to anything more than the amounts being offered[34]The claimant’s representative replied by email dated 5 March 2019 noting:(1) That full reasons for the Employment Judge’s decision had not been received; and(2) The claimant would appeal the order to strike out the discrimination claims;(3) Once the appeal was lodged there would be an application for a stay of the Tribunal proceedings pending the outcome of that appeal;(4) Any settlement proposal would have to take into account the claimant's possible success in the appeal.[35]The consequences for the respondent in the claimant refusing to settle for a monetary amount which represented the full amount the claimant could possibly hope to recover in her claim, have been significant for the respondent which then incurred more than £20,000 in additional costs.[36]It must have been apparent to the claimant (who had the benefit of representation) that she would have been unlikely to have received the full sum being offered by the respondent in Offer 1. On this point Mr Wynne referred me to the Judgment in Frenkel v Topping UKEAT 0106/15 (cited at paragraph 15 of the final hearing Judgment in this case), particularly paragraph 13 of that Judgment which comments on a breach of the implied term of trust and confidence (“implied term”): “Too often we see in this Tribunal a failure to recognise the stringency of the test.”[37]Mr Wynne also referred me to paragraph 83 of the liability hearing Judgment, as follows: “83. There was not a breach of the implied term of trust and confidence. There was a breakdown in the relationship between the claimant and Elizabeth Acker. The respondent attempted to resolve the matter through proper application of the grievance procedure. The claimant did not agree with the suggested resolution, but this does not mean there was a breach of the implied term.”[38]In other words, said Mr Wynne, the respondent undertook the sort of process that an employer is expected to deploy. There was nothing to suggest a breach of the implied term. It must have been apparent to the claimant and her representative that she was very unlikely to meet the hurdle. Mr Wynne told me that he was not making these points in support of an argument (that he was not running) that the claim had no reasonable prospects of success. However, these points do, Mr Wynne submitted, reinforce the fact that the claimant was holding out for more than she might ever get. In rejecting an offer for the full amount that the claimant could possibly hope to achieve, she was unconcerned with the merits of the case. That lack of concern for the merits when rejecting an offer for the full amount that could possibly be recovered in the unlikely event she succeeded, amounts to unreasonable conduct.[39]The lack of concern with the merits of the case is consistent with the earlier position on discrimination. Mr Wynne referred me to various extracts of the full Reasons provided following the preliminary hearing on 15 January 2019 when the claimant's discrimination claims were struck out. In Mr Wynne’s submissions, the claimant’s conduct of the litigation in the lead-up to the 2019 preliminary hearing illustrates the claimant's failure to engage with properly progressing her claim. As such she progressed the claim without merit, which included her resistance of the strike out application.[40]For no good reason the claimant refused the offer later in 2019 and put the respondent to the inconvenience of unnecessary costs. Such actions are wholly outside of the overriding objective and amount to:(1) unreasonable conduct;(2) vexatious conduct;(3) an abuse of process.[41]Mr Wynne explained what he meant by “abuse of process” – that the claimant had put forward a Schedule of Loss that included a head of loss that was not recoverable in her unfair (constructive) dismissal complaint and refused to engage in settlement discussions which did not take account of this unrecoverable head of loss.[42]Mr Wynne also made raised concerns in relation to the claimant's statement of means. These points of submission were made both before and after Mr Wynne had been provided with an opportunity to question the claimant on her statement of means:(1) There was no documentation to back up the information received (although I note that the claimant did provide documents in relation to outstanding credit card amounts. These documents were provided during the course of the hearing);(2) At the preliminary hearing in 2019 the claimant stated her position was that she had £455 per month disposable income and yet it was now down to £209.65;(3) Looking at the figures provided in the statement of means it is clear that more disposable income than this is available, Mr Wynne noting that there was unexplained household expenditure of £100 a month even though the claimant had already identified household expenditure;(4) In relation to credit cards, a figure of £550 had been given but Mr Wynne queried whether that would be a monthly cost and may well be a one-off cost. Mr Broomhead’s Submissions[43]The respondent’s costs application relies on “without prejudice” correspondence. Calderbank principles do not apply in Tribunals. The respondent should not be asking the Tribunal to read without prejudice correspondence.[44]Mr Wynne starts from the premise of what the claimant can reasonably be expected to know and what the claimant could reasonably be expected to recover. Specifically in relation to the £7,240 this is for unpaid wages that the claimant says should have been paid during the period prior to her constructive dismissal. It is not a made-up figure. The claimant has clearly stated what that amount is. The claimant was not unconcerned with the merits of this argument and she had a reasonable expectation that the respondent could have awarded her this amount had she succeeded in her claim. These are monies that she should have been paid.[45]Even if the claimant had been offered £100,000, she would still have been entitled to pursue her claim to a judgment to say that she had been unfairly dismissed.[46]Mr Broomhead rejected the assertion by Mr Wynne that the claimant had failed to advance her case, noting that the case had been postponed due to the coronavirus pandemic.[47]Mr Broomhead submitted in summary that the claimant has not acted vexatiously, abusively or otherwise unreasonably. There is no relevance now in the preliminary hearing Judgment and Mr Wynne should not try to rely on it. Whilst appeal against that Judgment was considered, the decision was taken not to pursue an appeal and just get on with the remaining complaint of constructive unfair dismissal.[48]Turning to the statement of means: this represents a truthful and reasonable account of income and expenditure.[49]The claimant’s income has changed from two years previously as she is now not working but instead receiving a pension. Findings of Fact – Statement of Means[50]I make the following findings in relation to the claimant's statement of means and the evidence provided:(1) The statement sets out an accurate record of the claimant’s household’s income and expenditure. I am supported by this in the claimant's information that she volunteered about her credit card bills showing expenditure for September of £550 and also showing that this was not a one-off amount. The credit card debts were much greater than this and the amounts being paid off were more than the minimum amounts required but not significantly more.(2) The remaining expenditure (including the expenditure on a mobile telephone) appear broadly reasonable, and I accept the figures as accurate.(3) Whilst the claimant is currently only drawing a small pension, most of the income comes from her partner, although the claimant is actively seeking other employment.(4) The claimant and her partner have some savings, about £5000 between them.
Applicable Law
[51]Unlike the general procedure in Civil Courts, costs do not “follow the event” in Employment Tribunals. Traditionally, Employment Tribunals have allowed employees to challenge the fairness of dismissals (or other matters within the jurisdiction of Employment Tribunals) without a threat of costs in the event that a claim is unsuccessful and employers to respond to claims, without a threat as to costs in the event that a claimant is successful.[52]The Rules provide Tribunals with a power to award costs in the circumstances set out in those Rules.[53]Those Rules which are relevant to the respondent’s costs application state as follows: “76. When a Costs Order or Preparation Time Order may or shall be made A Tribunal may make a Costs Order or a Preparation Time Order and shall consider whether to do so where it considers that:(a) A party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; ……………………… 77. Procedure A party may apply for a Costs Order or a Preparation Time Order at any stage up to 28 days after the date on which the Judgment finally determining the proceedings in respect of that party was sent to the parties. No such order may be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application. 78. The amount of a Costs Order (1) A Costs Order may – (a) Order the paying party to pay the receiving party a specified amount not exceeding £20,000 in respect of the costs of the receiving party;(b) Order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined, in England and Wales, by way of a detailed assessment carried out either by a County Court in accordance with the Civil Procedure Rules 1998 or by an Employment Judge applying the same principles.” ……………………………………. 84. Ability to Pay In deciding whether to make a costs ……. order and if so in what amount, the Tribunal may have regard to the paying party’s….ability to pay.”[54]The respondent’s application for costs is, in part, made on the basis that the claimant has engaged in vexatious conduct. In the 1974 case of ET Marler v. Robertson the National Industrial Relations Court included the following description of vexatious conduct in Tribunal litigation: “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.”[55]In the more recent case of AG v. Barker [2000] 1 FLR 759 (not an employment case but cited by the Court of Appeal in the case of John Scott v. Sir Bob Russell MP [2013] EWCA Civ 1432 – an appeal against a costs order made by an Employment Tribunal) Lord Bingham LCJ stated: “[T]he hallmark of a vexatious proceeding is … that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceedings 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.”[56]When considering whether to make a costs order on the grounds of unreasonable conduct, Employment Tribunals should take into account the nature, gravity and effect of a party’s unreasonable conduct.[57]It is not uncommon for an offer of a financial settlement of litigation (including in the Employment Tribunals) to include a notification that an application for costs will be made if the offer is rejected and the case pursued. In the civil courts a “Calderbank” letter can be an effective tactic in ensuring that a party rejecting a financial settlement has some confidence that he or she will recover more at a trial than was offered. It is clear that “Calderbank” letters do not lead to a successful costs application in Employment Tribunals, in the event that the party rejecting the offer does not succeed at a full Tribunal hearing. It is Rule 76 which sets out the circumstances in which costs orders may be made. However, Tribunals can take these types of letters into account in appropriate circumstances when applying Rule 76 (see for example Anderson v. Cheltenham & Gloucester plc UKEAT/0221/13).[58]Mr Broomhead referred me to an earlier decision of the EAT in Monaghan v. Close Thornton Solicitors EAT/3/01 (Monaghan). I note the following extracts from paragraph 25 of this judgment:- “… we confess to some unease about the consequence of the use of what was, in effect, a Calderbank offer in the Employment Tribunal context. We do not doubt that where a party has obstinately pressed for some unreasonably high award despite its excess being pointed out and despite a warning that costs might be asked against that party if it were persisted in, the Tribunal could in appropriate circumstances take the view that that party had conducted the proceedings unreasonably. Whilst we would not want to deter the making and the acceptance of sensible offers, if it became a practice such that an applicant who recovered no more than two thirds of the sum offered in a rejected Calderbank offer was, without more, then to be visited with the costs of the remedies hearing or some part of them, Calderbank offers would be so frequently used that one would soon be in a regime in which costs would not uncommonly be treated as they are in the High Court and other Courts. Yet it is plain that throughout the life of the Employment Tribunals the legislature has never so provided. It can only be that that was deliberate.[59]When deciding whether a party’s conduct was reasonable, a Tribunal should not substitute its own view but should ask whether the conduct of the party was inside or outside the range of reasonable responses in the circumstances (see Solomon v. University of Hertfordshire UKEAT 0066/19, particularly para 107) (Solomon).[60]In the event that a Tribunal decides that the conduct of a party has been “vexatious, abusive, disruptive or otherwise unreasonable” then the Tribunal must then consider whether to make a costs order. It does not automatically follow that a costs order will be made. This consideration requires the Tribunal to exercise a discretion. There is no finite list of matters that Tribunals must take into account when exercising this discretion, and the relevant importance of various factors will depend on the particular circumstances of the case. In the case of Barnsley MBC v. Yerrakalva [2011] EWCA Civ 1255 the Court of Appeal noted as follows:-. (At 41) The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. (At 42) On matters of discretion an earlier case only stands as authority for what are or what are not the principles governing the discretion and serving only as a broad steer on the factors covered by the paramount principle of relevance. A costs decision in one case will not in most cases predetermine the outcome of a costs application in another case: the facts of the cases will be different as will be the interaction of the relevant factors with one another and the varying weight to be attached to them.” Analysis and Conclusion[61]The first issue I need to decide is whether the conduct of the claimant falls within rule 76 (1); therefore whether I agree with Mr Wynne that the claimant’s conduct, in rejecting proposal one and/or 2 was unreasonable, vexatious and/or an abuse of process.[62]I do not find that the conduct in rejecting proposal one amounts to vexatious conduct (having regard to the tests set out in the authorities noted above) but I do find that it amounts to unreasonable conduct in that (applying Solomon) it falls outside of the range of reasonable responses. My reasons are:-a. That the claimant, with the benefit of professional advice, initially set out sensible heads of loss/compensation for the unfair dismissal claim. Those heads were a distinct part of the schedule of loss which then applied to both the unfair dismissal and discrimination claim.b. It was only after the discrimination claims had been struck out that additional losses for unpaid wages appeared. Those losses were not recoverable in the unfair dismissal claim.c. The respondent set out its position clearly when proposing to pay to the claimant the full extent of the unfair dismissal losses/compensation originally stated. The claimant did not explain at the time why the unpaid wages had been added to the losses. The claimant, through her representatives, simply did not engage with the respondent on this important point.d. The respondent was effectively offering to pay the claimant all that she could reasonably hope to recover in the event that she succeeded in her constructive unfair dismissal claim.e. Further, the respondent provided a time limit on the settlement proposal to enable the claimant to be able to consider her position including on the issue of appeal.f. Even though the claimant chose not to appeal the judgment striking out her discrimination claims, she did not accept proposal one.g. Mr Broomhead has been unable to provide any reasonable explanation about the addition of the claim for unpaid wages; his explanation simply being that the claimant had a reasonable expectation that she would recover these amounts. As the claimant was represented throughout and professional advice will have been provided to her, she cannot have had a reasonable expectation that she would recover these amounts. Further, the correspondence from Bird and Bird (which the claimant will have been able to review at the time that proposal one was made) set out the position clearly.h. The addition of unpaid wages to the schedule of loss after the claimant was required to remove those elements attributable only to her discrimination complaint (after it had been struck out) is particularly unimpressive. It cannot be categorised as “posturing” in the course of negotiations in the hope that a higher offer might be achieved.i. There is no indication that the claimant was looking for an outcome of a public judgment on a particularly important issue. Mr Broomhead raised, as a general point in his submissions, that a claimant is entitled to a judgment. A need for determination of a particular issue may mean in some cases that a refusal to engage with a sensible settlement proposal is not unreasonable conduct but there is no evidence that this is such a case. This case is the type described at paragraph 25 of Monaghan. The claimant has obstinately pressed for an unreasonably high award despite its excess being pointed out and despite a warning that costs might be asked against that party if persists with the litigation.[63]I do not find that rejecting proposal 2 in itself amounts to unreasonable conduct. At that stage the claimant was being offered less than she could hope to recover in a case which had some reasonable prospects of success.[64]Having decided that the claimant’s conduct is unreasonable for the purposes of rule 76 (1) I next need to consider whether I should exercise my discretion and make a costs order.[65]In exercising my discretion I have taken account of the following:-a. That costs are the exception in Employment Tribunals.b. The comparative size and resources of the partiesc. The impact of the unreasonable conduct. Although the decision to reject proposal one in 2019 was just one aspect of conduct in litigation which had started in 2018 and ended in 2021, persistently relying on these unachievable amounts meant that this litigation continued for a further 2 years at considerable cost.d. That costs awards should not be used to punish a party against whom the costs order is made but to compensate the party making the application.e. That the claimant had the benefit of professional advice to explain the amounts claimed, the offer made and the possible consequences of rejecting the offer.[66]My decision is that a costs order should be made. Whilst factors a and b above, mitigate against a costs order, considerable costs, time and resources could (and should) have been avoided once an offer of payment of all recoverable amounts had been made.[67]The final part of my decision requires me to apply Rule 84, whether I should take in to account the claimant’s ability to pay and if so, how much should be awarded by way of costs.[68]My decision is that I should take in to account the claimant’s ability to pay. The claimant has a low income, now drawing a pension. It is clear from the details of household and other expenditure that this is greater than the claimant’s income. The larger part of expenditure is covered by the claimant’s partner. The claimant cannot afford to make any payment towards costs from her income.[69]The claimant also informed me that she and her partner had £5000 in savings. The claimant is able to use her half of these savings as part payment of the respondent’s costs.[70]I make a costs order requiring the claimant to pay £2500 to the respondent. Employment Judge Leach Date 25 October 2021