M Odusanya v Pennine Care Foundation Trust and Others: 2406597/2022

EMPLOYMENT TRIBUNALS

Case No 2406597/2022

Between

M OdusanyaClaimant

Pennine Care Foundation Trust and OthersRespondent

Before

Employment Judge J Bromige

Ms Goodman (instructed by Counsel) for claimant

Date 20 November 2023

JUDGMENT

[1]The Claimant presented her ET1 on 26th August 2022, in which she brought allegations of race discrimination against the four Respondents named in the claim form. At the time she issued her claim, she was a Litigant in Person. The headline aspect of the claim is that: From 23/02/2022 to 07/06/2022, [R2] copied [R4] our line managers into every email to me that did not require her attention in discriminatory acts of passive aggression and harassment. On 08/04/22 and 20/04/22, her discrimination became overt when copied [R4] into the emails requesting the NHS numbers of clients.

[2]The Second Respondent filed their ET3 on 29th September 2022, with an ET3 for the remaining Respondents received the following day. A preliminary case management hearing was listed for 9th December 2022, with a final hearing listed for 3 days from 13th – 15th November 2023.

[3]On 24th November 2022, the Royal College of Nursing came on record for the Claimant. An application to amend the claim was received on 6th December 2022, which resulted in the preliminary hearing on 9th December 2022 being adjourned and relisted on 15th May 2023.

[4]The hearing was listed for 3 hours, however in discussion with the parties, it was agreed that this preliminary hearing would only deal with the amendment application. Consequential directions are set out below. I have relisted the case for a further case management hearing on 6th June 2023, in order for the list of issues to be resolved and directions made through to the final hearing in November 2023. The Application

[5]The Respondents replied to the application on 7th December 2022. Solicitors for the Second Respondent indicated they needed further time to take instructions before a response. The First, Third and Fourth Respondents set out some headline areas of opposition from their “initial review” and stated they also needed time to take full instructions. Despite this, it is regrettable that none of the Respondents took the opportunity of the intervening 6 months to furnish the Tribunal with a more detailed outline of their opposition to the application, such as in the format of a skeleton argument.

[6]I was provided with an agreed bundle of 98 pages. The Claimant had set out in her amended grounds of claim (dated 5th December 2022) the areas that were existing claims, identified in green text. There was a further helpful draft list of issues which easily identified the new claims that the Claimant sought to add (pgs. 67-69).

[7]Ms Goodman told me that the amendment application arose from a conference with the Claimant on 2nd December 2022, and it was made promptly, both in the context of that conference, and the RCN coming on record the previous week. Before that the Claimant had been representing herself and, Ms Goodman submitted, she could not be expected to have identified discriminatory acts out of particular examples of poor treatment, for example, the victimisation amendment.

[8]Broadly Ms Goodman’s application fell into two camps. Firstly, there was additional factual pleadings between the period 23rd February – 7th June 2022, which is when the Claimant says she was discriminated against. Secondly, there were acts pre-dating 23rd February 2022, by both the Second and Fourth Respondent. For these allegations, the Claimant submitted that these would be put before the Tribunal in evidence in any event, since they demonstrate unfavourable treatment by the Respondents and so the Tribunal would be invited to draw inferences from these matters to support the contention that discrimination occurred after 23rd February.

[9]From the Claimant’s position, there was no prejudice. The case could be effectively case managed and prepared, and there was no risk to the final hearing in November 2023.

[10]Mr. Stepanous submitted that there was prejudice in granting the application, in that the First Respondent would need to call at least two additional witnesses, and the final hearing would need to be listed for 5-6 days, potentially causing delay (in re-listing the hearing) and expense (through the additional days). He said that the ET1 is not just a form to get the ball rolling but rather it must set out the basis of the claim in full. He rejected Ms Goodman’s position that the application was made promptly – there was nothing stopping the Claimant from contacting her Union earlier (such as before contacting ACAS) and there had been no new information discovered in this matter.

[11]Mr. Stepanous also addressed me on the merits of the claim, in particular, the victimisation complaint which he said was a new cause of action. One of the alleged protected acts, an email from 8th April 2022 (pg. 98), refers to a complaint of “micro aggression and harassment” by the Fourth Respondent. This was, the Respondents say, a reference to more general bullying, and not a complaint which would bring it under the ambit of s.27(2)(d) EqA 2010.

[12]Ms. Quigley also resisted the application. She said that the ET1, whilst short, was well articulated. It identified the period in which discrimination had occurred. That was an allegation of overt discrimination by the Second and Fourth Respondents during a defined period, and so it was not necessary to look at background matters to establish the general working relationship, nor subconscious bias.

[13]Further, even during the defined period, the Claimant is seeking to add new allegations which do not disclose a meritorious case. Ms. Quigley gave several examples, including §25 of the amended particulars of claim (pg. 75) where the Claimant acknowledges that the Second Respondent placed pressure on both the Claimant and her colleagues “in order to mask her discriminatory intent toward the Claimant”. Ms. Quigley suggests that if such an amendment was allowed, it would be well within the territory of a deposit order. She also gave further examples to illustrate the point, which I have considered, at §32, 44 and 46. The Law

[14]The leading case giving guidance upon whether to permit an amendment is Selkent Bus Co Limited v Moore

[1996] IRLR 661

. I must take into account all of the circumstances in the case and balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. The relevant circumstances are:a. The nature of the amendment.

b. Time limits for any new claims that are being brought; and

c. The timing and manner of the application to amend the claim.

[15]The nature of the amendment can cover a variety of matters, such as:a. the correction of clerical and typing errors;

b. the additions of factual details to existing allegations;

c. the addition or substitution of other labels for facts already pleaded;

d. the making of entirely new factual allegations which change the basis of the existing claim.

[16]The reference in Selkent to the importance of time limits as a factor in the exercise of the discretionary exercise must not be elevated to a suggestion that an amendment will not be permitted simply because it is (apparently) presented outside any statutory time limit. An Employment Tribunal has a discretion to allow an amendment which introduces a new claim out of time: as per Transport and General Workers Union v. Safeway Stores Limited

UKEAT/0092/07/LA

[17]Galilee v Commissioner of Police for the Metropolis

UKEAT/0207/16/RN

states that it is not always necessary to determine a potential time/jurisdiction point when considering whether to allow an amendment. There might be cases where the issue of jurisdiction should be left to the final hearing.

[18]In respect of amendments which seek to do more than make corrections or add to existing allegations in Abercrombie & Others v Age Rangemasters Limited

[2014] ICR 209

Underhill LJ said: ‘48. Consistently with that way of putting it, the approach of both the EAT and this Court in considering applications to amend which arguably raise new causes of action has been to focus not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of enquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted. It is thus well recognised that in cases where the effect of a proposed amendment is simply to put a different legal label on facts which are already pleaded permission will normally be granted..... ......50. ..... Mummery J says in his guidance in Selkent that the fact that a fresh claim would have been out of time (as will generally be the case, given the short time limits applicable in employment tribunal proceedings) is a relevant factor in considering the exercise of the discretion whether to amend. That is no doubt right in principle. But its relevance depends on the circumstances. Where the new claim is wholly different from the claim originally pleaded the claimant should not, absent perhaps some very special circumstances, be permitted to circumvent the statutory time-limits by introducing it by way of amendment. But where it is closely connected with the claim originally pleaded – and a fortiori in a re-labelling case – justice does not require the same approach....’

[19]Ms. Goodman also drew my attention to the case of Sefton Metropolitan Borough Council v Hincks

UKEAT/0092/11/SM

, although this authority (from Underhill P as he then was) does not add any further gloss on the principle in Abercrombie.

[20]Finally, in Kumari v Greater Manchester Mental Health NHS Foundation Trust

[2022] EAT 132

, HHJ Auerbach stated at para 63: The Tribunal is therefore not necessarily always obliged, when considering just and equitable extension of time, to abjure any consideration of the merits at all, and effectively to place the onus on the respondent, if time is extended, thereafter to apply for strike-out or deposit orders if it so wishes. It is permissible, in an appropriate case, to take account of its assessment of the merits at large, provided that it does so with appropriate care, and that it identifies sound particular reasons or features that properly support its assessment, based upon the information and material that is before it. It must always keep in mind that it does not have all the evidence, particularly where the claim is of discrimination. The points relied upon by the Tribunal should also be reasonably identifiable and apparent from the available material, as it cannot carry out a mini-trial, or become drawn in to a complex analysis which it is not equipped to perform. Discussion and Conclusions

[21]With reference to the Claimant’s draft list of issues, I start by examining the proposed amendments which pre-date 23rd February 2022, in other words are both new factual and legal pleadings. These are the allegations of harassment at §5(e), (f), (g) and (h).

[22]Applying the language in Selkent, I assess these amendments as wholly new factual allegations (there is no reference to discrimination occurring prior to 23rd February in the ET1) although I do not conclude that they change the basis of the existing claim. They are further allegations of racial harassment, or in the alternative, direct race discrimination.

[23]Where they do potentially impact upon the claim is that the Respondent will be required to call additional witnesses to deal with these allegations, namely two employees who are named as part of the caseload distribution allegation (that is, §5(h) of the list of issues). I accept the Respondents’ submission that this, coupled with an expanded period of allegations which will extend the cross-examination of the Claimant, as well as the Second and Fourth Respondent, will impact upon the length of the final hearing.

[24]The final hearing is listed 13th – 15th November 2023. Fortunately, having made enquiries with the Tribunal Listing Team, the Tribunal is able to accommodate an extended 5-day listing, between 13th – 17th November 2023. This extended listing does not impact upon other cases listed (by diverting away judicial resource), and it does not create a delay for either party. Therefore the prejudice suffered by the Respondents is being put to the additional time and expense of two additional hearing days and needing to source additional evidence (both documentary and via witnesses).

[25]The injustice and hardship to the Claimant is that if this amendment is not allowed, she may not be able to advance evidence from which further inferences might be drawn, in particular against the Second and Fourth Respondent. I accept Ms Goodyear’s submission that in cases of this kind, it is not for the Tribunal to view each allegation in isolation. Race discrimination is often not overtly displayed by the perpetrators of such conduct but instead might be proven from inferences drawn from several sources.

[26]Here the Claimant is not seeking to cast her entire employment with the Respondent through the lens of discrimination (which some Claimant’s try to do), and so is not expanding her claim over a period of years. At its highest, these allegations go back one month prior to her already pleaded case. If the Claimant is denied permission to amend, she potentially loses the ability to bring cogent evidence of the Respondents’ conduct before the Tribunal. In my judgment this is the greater prejudice, and so, balancing those factors of injustice and hardship, I will allow the amendments pertaining to §5(e), (f), (g) and (h).

[27]I can deal with the next batch of amendments, that is §5(i) – (o) more succinctly. These are, in my judgment, the addition of factual details to existing allegations. Whilst the focus of the ET1 was the Second and Fourth Respondent’s discrimination via being copied into emails, the overall pleading is that the Claimant was subjected to race discrimination between 23rd February 2022 – 7th June 2022.

[28]I have some sympathy with the Respondents’ position that some of these claims are difficult to follow, or contradictory. In particular, the allegation at §25 of the amended pleadings (pg. 75-76) which is also at §5(i) on the list of issues seems to be legally muddled. However, apart from the pleadings, I have not been provided with any evidence around this issue, and to paraphrase the warning of HHJ Auerbach in Kumari, I am ill-equipped to hold a mini-trial on this issue.

[29]Where the Respondent is on firmer ground is that allegation 5(i) cannot work as an act of direct race discrimination, since the Claimant accepts that the same treatment was imposed upon everyone – her and her colleagues. Taking the Claimant’s case at its highest, if this was a heavy-handed measure designed specifically to target her, it could (and I express no firm view on this) amount to an act of unwanted conduct under s.26 EqA 2010. But that allegation is, I conclude, bound to fail as an allegation of direct race discrimination since there are several potential named comparators, all of whom were subject to that same treatment. There is no less-favourable treatment compared to the Claimant’s colleagues, even if the treatment was unwanted and linked to the Claimant’s race.

[30]Therefore I do not allow the proposed amendment at 5(i) to be advanced as an allegation of direct race discrimination, however, the rest of the proposed amendments, including §5(i) as an act of racial harassment is permitted. In arriving at this decision, I have concluded that the addition of further specific allegations during the already pleaded period does not cause any particular hardship to the Respondent.

[31]Whilst perhaps a separate factual issue, the grievance outcome - 5(p) is in my judgment also raised adequately in the ET1, and therefore this is at most the additional of a label to facts already pleaded. To the extent permission to amend were required, it creates no prejudice to the Respondent. The evidence around the grievance process and outcome would have been disclosed and relevant to the issues at the final hearing even on the way the claim is formulated in the ET1. That amendment is allowed.

[32]The final amendment I must consider is the victimisation complaints. The Respondents have submitted that from the alleged protected act contained in the bundle (from 8th April 2022) I can take into account the merits (or lack thereof) in the Claimant being able to show this is a protected act. I am not persuaded by this argument. The Respondents might very well be correct in their analysis of this document, but this is the only piece of documentary evidence I have seen, and I am not aware, for example, of what conversations the Claimant may have had with the Second and Fourth Respondents around what she perceived to be “micro-aggression(s)” before this email. Nor have I heard any evidence as to what the Second and Fourth Respondents interpreted “micro-aggression and harassment” to be.

[33]I take into account that this is a new cause of action being introduced after the expiry of the statutory time limits (which would be 7th September 2022 adopting the calculation method of s.140B(4) EqA 2010). However, I am also prepared to accept the Claimant’s submission that this technical type of claim (i.e., recognizing the concept of a “protected act”) was not something that would have been apparent to her as a litigant-in-person. The Respondent is correct that the Claimant could have sought legal advice earlier via her Union, but I have no information as to what caused that delay, and in any event, little prejudice to the Respondent attaches to what is effectively a three-month delay as to their ability to gather evidence.

[34]What is the prejudice to the Claimant if she is prevented from this amendment? She would not be able to bring a claim for detriments, which as above, is a new cause of action and addresses a different mischief to the primary harassment claims. However, the Claimant is still employed by the Respondent, all of her detriment claims are very much “in the alternative” to her harassment allegations, and there would be little to no increase in her compensation if she was successful.

[35]The prejudice to the Respondents is that they face further claims, of a different legal basis, which expands the focus of the claims and could cause some additional expense. However, the same two alleged perpetrators (the Second and Fourth Respondents) are named as the people subjecting the Claimant to detriments, and so the evidential inquiries needed are not significantly expanded.

[36]This proposed amendment is more finely balanced than the others, however in my judgment it is just about in favour of the Claimant. The prejudice to the Respondent is relatively minor, and the Claimant would be denied bringing a different claim which requires the Tribunal to further analyse the mindset of the alleged perpetrators. This is in particular relevant to the allegation that Ms. Mack’s grievance outcome was tainted by discrimination which might more naturally fit as an allegation of victimisation, especially as in the Claimant’s own initial analysis she did not think that the grievance outcome was racially motivated.

[37]Therefore the Claimant’s application to amend her claim is granted in full, save that allegation 5(i) is only allowed as an amendment in relation to the s.26 EqA 2010 claim. Consequential Directions

[38]In light of my judgment, and having canvassed further case management with the parties at the preliminary hearing, I make the following directions:a. The Claimant is to provide an updated draft list of issues and updated case management agenda to the Respondents by 26th May 2023;

b. The Respondents to provide any proposed amendments and/or comments to the list of issues and agenda by 2nd June 2023;

c. Further case management hearing heard via CVP on 6th June 2023 to finalise list of issues and provide directions through to the final hearing.

d. The listing of the final hearing is amended to 13th – 17th November 2023. This proposed listing is to secure the additional days at this stage, and it will be a matter for the Judge at the next preliminary hearing to confirm the exact length of hearing and timetable.

REASONS

[1]The claimant brought claims direct discrimination, harassment and victimisation on the grounds of race as per sections 13, 26 and 27 of the Equality Act 2010, against the four respondents.

[2]In summary, her claims are struck out because during a break in proceedings when the claimant was still under oath and being cross-examined, she obtained the assistance of her sister and instructed a representative, Mr Lennard, to appear on her behalf in the remainder of these proceedings. The manner in which the claimant conducted the proceedings on her own behalf was found to be unreasonable by the Tribunal, and the Tribunal concluded that a fair hearing was no longer possible. The claimant had been warned on four separate occasions of the need not to discuss the case with anyone. The Tribunal concluded that, as there was a real risk that others had influenced the content or manner of her evidence, it was tainted in a way that was hard to assess and this prejudiced the fair determination of the case. Having considered the available alternatives, the Tribunal concluded that we were not able to take any lesser course of action other than to strike out all of the claims. Background matters relevant to the strike-out application

[3]The claimant is a registered nurse who, at the relevant time for these proceedings, was employed by the first respondent (hereafter, “R1”) as a mental health practitioner. She remains employed by R1. The second respondent (hereafter, “R2”) is not employed by R1 but worked alongside the claimant and her colleagues at the time to which these claims relate by way of a partnership arrangement with Rochdale Metropolitan Borough Council and R1 to provide community mental health services. The third and fourth respondents (hereafter “R3” and “R4” respectively) were employed by R1 at the relevant time.

[4]The claimant issued proceedings in the Tribunal on 26 August 2022. The claimant was represented by counsel instructed by the Royal College of Nursing (“RCN”) from 24 November 2022 until the RCN came off the record on 8 November 2023. At a case management hearing before EJ Bromige on 15 May 2023, the RCN applied on the claimant’s behalf to amend her claims, noting that the “exact nature of the claimant’s claims” had been clarified by counsel in a conference with the claimant after the RCN came on the record. The application succeeded and C’s claims were amended. The respondents submitted amended particulars of response.

[5]This hearing was the final hearing in this claim and was listed for five days from 13 to 17 November 2023. It was listed and case management orders were made on 6 June 2023 by EJ Ganner at a preliminary hearing. At that hearing, by agreement with the parties’ representatives, a timetable was drawn up, setting out the estimated duration of cross-examination of the parties and witnesses and matters such as time for deliberations and judgment such that it was agreed that a 5 day hearing would be sufficient.

[6]The claimant issued a second claim against R1 only on 19 July 2023, which the Tribunal understands relates to her employment by R1 in a different team, the claimant having been promoted by R1 and therefore moved out of her previous team. On 28 October 2023 at a preliminary hearing before EJ Aspinall, the claimant’s application to combine the two claims was heard and refused, in part due to the effect that combining the claims would have on this hearing, in that it would have to be postponed, and the prejudice to the respondents in doing so, particularly the three individually-named respondents, would be too great.

[7]By the first day of the final hearing (13 November 2023), the claimant was no longer represented by the RCN, who came off the record at the Tribunal on 8 November 2023. The Tribunal spoke to the claimant at the start of the hearing and told her that, although she had only recently lost her legal representatives and might be feeling concerned by this, the Tribunal regularly heard from litigants in person and could clarify any procedural matters she may be unfamiliar with, such as the procedure for cross-examination.

[8]The claimant informed the Tribunal that it had been her choice, in that she voluntarily parted company with the lawyers for the RCN, as she decided that she knew her case better than they did and knew better how to present it. She said that she had not had a disagreement with the RCN about the presentation of her claim and that they had “continued to support” her with her case.

[9]She was, however, critical of the RCN and her counsel. She said that they had omitted important details about her case and she had therefore applied, by an email sent at 9.55am on day 1 (13 November 2023) to introduce a supplementary witness statement which ran to 25 pages (therefore almost doubling the length of her witness evidence) and an additional bundle of documents running to approximately 297 pages, which she wished to add to the existing bundle which was at that time over 800 pages long. She also applied to introduce three audio recordings of meetings that had been covertly recorded, which included her two mediation meetings with R2, R3 and R4. Until that evidence was disclosed, the Tribunal was told that none of the respondents had known that those meetings had been recorded. The respondents’ legal representatives did not receive some of the documents relating to the claimant’s application until 10.18am on the morning of the first day. They had been unable to open the audio files sent by the claimant and so had been unable to access the audio recordings.

[10]The Tribunal sought to clarify with the claimant at the start of the hearing the nature of the applications and the reasons why they were being made at this stage in the proceedings. The discussion with the claimant and the respondents’ counsel continued for most of the morning on day 1. The claimant told the Tribunal she received her bundle from her representatives on or around 23 October 2023. She said that she had been “blindsided” by the contents and that they had not been previously discussed with her.

[11]There was also an allegation by the claimant that she had not agreed the contents of her witness statement prepared by her representatives. The respondents’ counsel noted that this amounted to an allegation that the claimant’s counsel had misled the Tribunal by serving the statement as though it was the claimant’s sworn evidence in chief. Counsel noted that it was highly unlikely that, as officers of the court, her representatives had misled the Tribunal if the claimant had not agreed the contents of the statement and had not instructed them to serve it. Counsel noted that what was more likely was that the claimant was seeking to change the presentation of her claims at the last minute.

[12]The Tribunal reminded the parties that any issues relating to allegations of professional negligence or misconduct were not matters falling within the Tribunal’s jurisdiction. Further on in the discussion with the Tribunal, the claimant confirmed that she was not withdrawing the earlier witness statement prepared with the assistance of counsel and still sought to rely on it, but that she wished to also rely on the second statement.

[13]The Tribunal spent the rest of day 1 determining the application. The Tribunal and the respondents’ counsel needed time to read the additional documents and consider their responses to the application. It transpired on careful reading of the additional 25-page witness statement that contained within it, but not presented separately to the Tribunal as an application, were requests to amend the agreed list of issues which had been in place since the preliminary hearing on 6 June 2023. It also contained a mixture of rebuttal evidence to the respondents’ statements and reference to issues raised in her second claim before the Tribunal.

[14]The Tribunal gave judgment at the end of day 1 and refused the claimant’s applications. Applying the overriding objective and the factors in Selkent Bus Company Limited v Moore

[1996] ICR 836

the balance of justice and prejudice to the parties was in favour of refusing the application. The timing and manner of the application, even taking into account that the claimant recently became a litigant in person, was extremely late. The scope of any amendment application was not clearly set out. The hearing would have to be delayed in order to allow the respondents to respond to the new issues and evidence. This would in all likelihood mean adjourning this hearing and relisting for a longer period which may not be for a further twelve months or more. The claimant had not been able to adequately explain why, having received the bundle on or before 23 October 2023, she had not made her applications until 9.55am on day 1, which was 13 November 2023. It was noted and the claimant did not dispute that she would have been in contact with her legal advisors on or around 28 October 2023 in connection with the hearing before EJ Aspinall, and so could have raised any concerns with the bundle or the list of issues then. Furthermore, the claimant’s existing witness statement, which she confirmed she still wished to rely on, covered the agreed list of issues very thoroughly.

[15]The Tribunal adjourned to read the remaining documents on day 2 in the morning and the claimant was sworn in to answer cross-examination questions on her statement and documents in the bundle at 2pm on day 2. During discussions with the claimant about her complaints, she was clear that her primary complaints were against R2. She was first cross-examined by counsel for R1, 3 and 4. During cross-examination, the claimant indicated that she wanted to put a question on a particular issue to one of the respondents and asked if she could make some notes to remind herself. The Tribunal said that she was not allowed to bring her notebook onto the witness stand, but provided her with some clean sheets of paper on which to write.

[16]The claimant remained under oath overnight between day 2 and day 3. At the end of the day on day 2, the claimant was given the standard warning by the judge which cautioned her to avoid discussing anything to do with her evidence overnight, and was told that although this may be difficult, she needed to do so until she was released from being under oath after her evidence had finished. The claimant appeared puzzled by this instruction and so was told that this was the standard warning given to all witnesses in the same situation and that the respondents’ witnesses would be given the same warning in the event that they were still under oath across any kind of break. The claimant asked for clarification of this. The judge acknowledged again that it might be difficult, but that she was not to discuss the case at all and should talk about anything else that night, such as the weather or television programmes. She was assured that she would be able to discuss it in any way she wished once she had finished being cross-examined, but until then she could not do so. The claimant acknowledged the explanation and the hearing concluded.

[17]On day 3, the claimant continued to be cross-examined. The claimant was unaccompanied at the Tribunal that day. The Tribunal adjourned for a comfort break at 12 noon for 15 minutes and the claimant was reminded about the need not to discuss her evidence with anyone else. The Tribunal took a lunch break at 1.05pm and the claimant was given the same warning. The judge said words to the effect of “I am giving you the same warning about discussing your evidence that I gave you before, please don’t discuss it with anyone as you are still under oath”. The claimant acknowledged this.

[18]The hearing resumed at 1.50pm and the cross-examination from counsel for R1, R3 and R4 ended at 3.15pm. The claimant was asked if she would like a comfort break before R2’s counsel started her cross-examination, and she declined. However, the claimant struggled during the cross-examination that followed, and became somewhat flustered and emotional. At 3.30pm, she began to cry, and it appeared that she did not wish to continue, as she placed her head on the desk and put her arm across her head, and did not look up when addressed, but could be heard crying.

[19]The Tribunal enquired after her and she did not respond. The Tribunal suggested, as the claimant was still in the middle of cross-examination, that the respondents and their witnesses should leave the hearing room and go to their waiting rooms. The claimant was offered the opportunity to go to her waiting room to have chance to take a moment in private, but she did not respond or look up at the judge. The Tribunal called the clerk and remained in the hearing room with the claimant, having offered a glass of water and tissues, until the clerk arrived, after which the Tribunal retired. The hearing resumed ten minutes later. The claimant had been able to recover, and apologised for having been tearful, and the Tribunal told her an apology was not needed. The Tribunal checked that the claimant was able to continue, and she confirmed she was.

[20]Cross-examination continued until approximately 4.05pm. The Tribunal discussed timings with R2’s counsel who said that she had hoped to finish crossexamination by lunchtime on day 4 but she may not be finished until mid- to late afternoon instead. The consequences of this were then discussed with the claimant, who appeared surprised to discover that she should come the next day prepared to start the cross-examination of the respondent’s witnesses, if her own cross-examination finished before the end of the day. The claimant had confirmed on day 1 that she had prepared cross-examination questions for the respondent’s witnesses when the Tribunal had discussed the matter with her. Then it became apparent that the claimant appeared to have assumed that the respondents’ counsel would be asking questions of the respondent’s witnesses first.

[21]The Tribunal explained that cross-examination was only used to challenge evidence that was not accepted and so the respondents would not be crossexamining their own witnesses, as they did not disagree with the contents of their own witness statements. By contrast the claimant was going to be cross-examining as she, it was assumed, disagreed with at least some of the evidence in the respondents’ witness statements. The claimant appeared uncomfortable with the prospect. The Tribunal assured, as it had done on day 1 when the issue was discussed, that the claimant should bring her list of questions tomorrow and further discussion would be possible at the end of her evidence, and the Tribunal could provide some further direction. The claimant asked could she cross-examine on matters outside the list of issues and the Tribunal bundle, and the Tribunal told her she could not, as these were not matters for the Tribunal to decide, as had been determined on day 1. The claimant was warned again about being under oath overnight and was reminded not to discuss her evidence with anyone.

[22]The hearing ended at 4.10pm on day 3. It was the Tribunal’s view by this stage that the hearing would not conclude in the time available, although given that the Tribunal had not seen how many questions the claimant wished to ask of each witness, it was not possible to be entirely sure.

[23]On day 4 at 9.20am, the Tribunal administration received a three-page email from Mr Lennard who was identified as the claimant’s new representative. The claimant told the Tribunal in a “letter of authority” attached to his email that he was not legally qualified but had knowledge of employment law. Having spoken subsequently to Mr Lennard, we understand this to be incorrect. Mr Lennard is a barrister who qualified overseas, and now works for a solicitors’ firm and was representing the claimant pro-bono.

[24]Mr Lennard’s email made detailed comments and submissions on the claimant’s behalf. The attached “letter of authority” dated 16 November 2023 from the claimant stated that she had instructed Mr Lennard “in a telephone conference on my sister’s invitation” the previous evening, 15 November. Mr Lennard’s email made a number of comments about the length of the hearing, the inadequacy of the remaining listing window, his estimate for the future length of any relisted hearing (said by him to require a further four days), and what time may be required for submissions and Tribunal deliberations. He also made an application to use the claimant’s notes made during the hearing to re-examine her at the end of her crossexamination.

[25]The claimant told the Tribunal when the hearing reconvened at 10am that she had supplied Mr Lennard with all the documents in the case, including the bundle, witness statements and her supplementary materials that the Tribunal had refused to admit.

[26]Mr Lennard said in his email “I was instructed by the Claimant shortly after 8.00PM (last night) and with the best will in the world and doing the best I can I decided to assist a close family friend….” The Tribunal understood that Mr Lennard was travelling to the Manchester tribunal offices that morning (day 4) and was expected to arrive at approximately 2pm. The respondents’ joint application for strike out of the claims

[27]At the start of proceedings on day 4, the respondents’ counsel made a joint application for strike out of the claimant’s claims under Rule 37(1) of the 2013 Employment Tribunal Rules of Procedure, on the basis that a fair hearing was no longer possible (rule 37(1)(e)), as the claimant was still under oath and had clearly had discussions with others about the case overnight. This was also conduct that was “scandalous, unreasonable and vexatious” (as per rule 37(1)(a)).

[28]Counsel for R2’s submissions on the issue were firstly, that there was no dispute of fact that the claimant had discussed her case while under oath. The claimant had instructed Mr Lennard, so must have discussed the case with him and also with her sister. Given the warnings given to the claimant at every break, for which she had sought clarification, including as to conversations with family members, there can have been no misunderstanding that this was not permitted. The Tribunal was, in the submission of counsel for R2, bound to conclude that the claimant had acted unreasonably and breached a clear order of the Tribunal. A fair hearing was no longer possible, as trust was irreparably damaged. Alternatives to strike out, including costs, were not appropriate reparations for that damage.

[29]Counsel for the remaining respondents endorsed this application and said that even if a fair trial were still deemed possible, the claimant’s behaviour amounted to “unreasonable conduct” of the proceedings by her that was so serious that strike out was still appropriate. The Tribunal was directed to the case of Arrow Nominees Inc v Blackledge

[2000] EWCA Civ 200

, where the conduct in issue was held to be so serious that it would be an affront to the ET to permit the party in question to continue with their case.

[30]The claimant was asked if she wished to say anything in response to the application. She said “I want to speak with my lawyer”. The Tribunal refused and told the claimant that the Tribunal needed to hear from her what happened regarding contact with Mr Lennard and her sister the previous day. The claimant told the Tribunal she had not discussed her evidence with him and was careful not to do so. She told the Tribunal she sent the whole bundle to him, emails and the supplemental statement but had only discussed the cost of representation and this was why Mr Lennard was so familiar with the length and duration of the hearing.

[31]The Tribunal was referred by the respondents to the decision of the Employment Appeal Tribunal in Chidzoy v British Broadcasting Corporation

UKEAT/0097/17/BA

. The Tribunal directed the respondents’ counsel to supply the claimant with a copy. The claimant asked if she could send a copy to Mr Lennard. The Tribunal said that she could not, and mis-spoke and said that Mr Lennard was not yet her representative. This was obviously not correct, in that the claimant had clearly given her authority for him to act on her behalf. However, the Tribunal was in considerable difficulties with this request and wished to prevent the claimant speaking to Mr Lennard about this, as if the claimant were to discuss the case with him this could reduce the chance of a fair hearing being possible, given that she remained under oath.

[32]The Tribunal noted that it was clear from the email sent by Mr Lennard, and the claimant’s letter, that there had been a “conference” with Mr Lennard and her sister the previous evening. The Tribunal asked the claimant how long this conference had lasted for. The claimant asked to look at her phone call logs to see, and she took out her mobile phone. The respondents’ counsel asked if they could see the phone record as well, if the claimant were going to give the Tribunal an answer to that question. The claimant, after a pause, told the Tribunal that she could not find the phone record and said she thought that perhaps her sister had set up the call.

[33]The respondents’ counsel noted that the claimant was unaccompanied at the hearing the previous day, and so the claimant must have discussed the case either with Mr Lennard or her sister, or both people. The conference, counsel said, can only have been to discuss the case.

[34]The Tribunal also noted that the claimant’s sister made the introduction to Mr Lennard as is referred to in the correspondence. Furthermore, the claimant told the Tribunal that her sister had set up the conference call with Mr Lennard.

[35]The respondents' counsel noted that the email showed real detail in Mr Lennard’s understanding, as how else was he able to predict that the entirety of the hearing would take 9 days.

[36]Finally, the Tribunal was reminded by the respondents that this matter introduced yet more delay into the proceedings. The claimant is still employed by R1. There are three individual respondents who are present or former work colleagues of one another and the claimant, and on whom these proceedings have taken a considerable toll. The claimant has another Tribunal claim outstanding and R1 is a public sector body and its costs are taking resources out of the public purse.

[37]Counsel for R2 noted that the claimant should not have been emailing about the case at all while under oath, as emails are counted as communications and would be covered under the laws relating to evidence. The claimant repeated emphatically that she had “discussed her evidence” with him and that she had been “mindful” of the Tribunal’s instruction.

[38]Despite the respondents’ counsel’s submissions and the Tribunal’s explanation , the claimant appeared somewhat exasperated as to why both counsel and the Tribunal were addressing this to such an extent. She said “I’m surprised at the conclusions being drawn” and said again that she did not discuss the evidence and said she told Mr Lennard she was under oath. The Tribunal explained again why the issue was being addressed in this way, in that she appeared to have breached the direct instruction given not to discuss her evidence while under oath and that this may mean that her claims cannot continue, but would be struck out. The claimant again denied having discussed anything with Mr Lennard the previous day. The claimant then appeared to consider the matter closed, as she said she wanted to discuss the accuracy of some Word documents in the bundle that she had referred to in evidence the day before. The Tribunal refused this request and said that the issue of the strike-out application needed to be dealt with first, and then retired to deliberate.

[39]At 2.40pm the hearing resumed and Mr Lennard was by then in attendance. The Tribunal began by saying to him “good afternoon, you must be Mr Lennard”. Unprompted, having first apologised for being late, Mr Lennard addressed the Tribunal at some length. He informed the Tribunal that he only got his “instructions” late the previous evening having been sent 800 pages of the bundle and the supplemental documents. He said he had gone painstakingly through this and then had “needed to take instructions”.

[40]He said that his firm, after enquiries, “had not been able to take the case on” and so he was, in essence, acting pro bono as the claimant was a family friend.

[41]He confirmed that he was in fact legally qualified, despite the claimant’s reporting to the contrary in her letter that he was “neither a solicitor nor a barrister”. He was currently employed by a solicitors’ firm, having obtained his Bar qualification overseas.

[42]The Tribunal asked Mr Lennard if he knew what the purpose of the respondents’ application was. He said that he did not. However, the claimant confirmed that she had emailed the Chidzoy case to him, which on the face of it is clearly about a strike out application.

[43]The Tribunal then explained the basis of the respondents’ application and that the Tribunal had already spent some time deliberating. He was asked what information he may have that might assist the Tribunal determine the application. He said he had taken instructions from the claimant’s sister and at no time did he discuss the evidence with the claimant. He said that he had “gleaned from the bundle what had happened” and this was his explanation for his ability to make detailed and what he described as “common sense” submissions to the Tribunal about the duration of the hearing and his other applications. It was not made clear how he knew to ask to use the notes the claimant had been making in order to reexamine her at the end of her evidence.

[44]The respondents’ counsel reminded the Tribunal that the claimant had noone with her the previous day in the Tribunal and it was therefore unclear as to how the claimant’s sister was able to give instructions to Mr Lennard unaided.

[45]The Tribunal retired again to deliberate further. The Law on Striking Out

[46]Rule 37 of the Employment Tribunal Rules of Procedure Regulations 2013, Schedule 1, “Striking out” states: (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds - (a) … (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; [……] (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).”

[47]Rule 41 of the Employment Tribunal Rules of Procedure Regulations 2013, Schedule 1, states “The Tribunal may regulate its own procedure and shall conduct the hearing in the manner it considers fair, having regard to the principles contained in the overriding objective. The following rules do not restrict that general power. The Tribunal shall seek to avoid undue formality and may itself question the parties or any witnesses so far as appropriate in order to clarify the issues or elicit the evidence. The Tribunal is not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts.”

[48]Tribunals in exercising any powers under the 2013 rules are obliged to have regard to rule 2 of the Rules of Procedure Regulations 2013, Schedule 1, the overriding objective “2. Overriding objective The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable -(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;

(d) avoiding delay, so far as compatible with proper consideration of the issues; and

(e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”

[49]The case of Bolch v Chipman

[2004] IRLR 140

provides four factors for the Tribunal to consider in cases where an application is made to strike out a party’s case. These are:a. Has the Tribunal concluded not just that a party has acted unreasonably, but that the proceedings have been conducted unreasonably by her or on her behalf;

b. If there is such a finding, the Tribunal will need to consider if a fair trial is still possible.

c. Even if a fair trial is not possible, the Tribunal will need to consider what remedy is appropriate and whether there are any lesser, alternative remedies that are more proportionate;

d. Even if strike-out is the appropriate response, the Tribunal should consider the consequences of that order, such as where a response has been struck out at the liability stage, it might still be appropriate to allow the Respondent to participate in any remedy hearing. (This final factor is not relevant to these proceedings in the Tribunal’s view.)

[50]There can be circumstances in which a Tribunal does not need to consider whether a fair trial is still possible. A finding of unreasonable conduct can lead straight to a striking-out in the following situations:a. where, as per De Keyser Ltd v Wilson

[2001] IRLR 324

EAT there has been “wilful, deliberate or contumelious disobedience” of a Tribunal order, or

b. where the conduct in issue is so serious it would be an affront to the Tribunal to permit the party in question to continue to prosecute their case (Arrow Nominees Inc v Blackledge

[2000] EWCA Civ 200

[51]Chidzoy v British Broadcasting Corporation EAT 0097/17 – the Tribunal had been justified in striking out a claim for unreasonable conduct based on a lack of trust in the claimant, who had been overheard discussing her case with a journalist during a comfort break, despite having been warned before the break and before all other breaks during her evidence that she should not do so since she remained under oath. The tribunal found that trust in the claimant was ‘irreparably damaged’, given that she had failed to bring the matter to the tribunal’s attention herself and that she and her representative had given varying accounts of the facts. The Tribunal’s conclusions and the decision to strike out the claims

[52]It is accepted that strike out is a draconian measure and should not be taken lightly.

[53]Taking the three relevant factors from Bolch v Chipman for the Tribunal to consider, we address the following in turn. Firstly, have the proceedings been conducted unreasonably by the claimant? We find that they have been.

[54]It is not in dispute that the claimant was under oath the previous day, or that Mr Lennard was given instructions to act for her while she was under oath. The claimant wrote in her “letter of authority” sent before the start of day 4 that she had a “telephone conference” with Mr Lennard the previous evening. When asked, she was not able to clearly say how long that conference had lasted for. She was unclear who had telephoned whom and did not provide any telephone records when asked to do so, although she did offer to show her phone log when the Tribunal reconvened at 2.40pm.

[55]When asked by the Tribunal for comments on what was discussed during this “conference”, after the respondents’ strike-out application had been made, she has said that she only discussed the future length of the hearing and costs, and that her sister gave Mr Lennard any other instructions. She also denied having discussed her evidence with her sister. She accepted that she emailed documents and statements to Mr Lennard the previous day. We find a lack of candour, and possible discrepancies in the claimant’s account of these events.

[56]Mr Lennard openly volunteered to the Tribunal at 2.40pm, without apparently knowing that there was a strike-out application before the Tribunal, that he had taken “instructions” the previous night in relation to the case. He accepted that he had known that the claimant was under oath when he did so.

[57]It is clear to the Tribunal that a considerable amount of documentation and written evidence about the case has been passed to Mr Lennard by the claimant and her sister, and also likely from the claimant to her sister, while she was under oath.

[58]It is not in dispute that the claimant was repeatedly warned, on four occasions, that she was not to discuss her evidence with friends and family while still under oath. Indeed, it is not in dispute that the Tribunal and the claimant had a discussion about this issue after the claimant sought clarification of this point.

[59]The claimant’s claims are for race discrimination, specifically harassment, direct discrimination and victimisation. In such claims, it could be said to be particularly important for the Tribunal to be able to rely on a party’s evidence as not being interfered with and being her true account of the incidents to which these claims relate. Such claims are highly fact-sensitive, relying on inferences being drawn and taking account of the claimant’s own perception. Issues to do with a witness’s credibility can be highly relevant. It is noted that the claimant has struggled while being cross-examined to articulate at all why she concluded that particular incidents were discriminatory. She has told the Tribunal on several occasions that she just “feels” that a white person would have been treated more favourably, without being able to provide any information about what it was about the respondents’ behaviour that has led her to such a conclusion.

[60]The claimant seeks to rely on the fact that she has not discussed in any detail “the evidence” with Mr Lennard and/or her sister. The claimant and Mr Lennard now submit that “instructions” also does not constitute a discussion of the case and the evidence, but the transmission of the documents and a discussion about covering Mr Lennard’s costs. We do not accept that submission on the balance of probabilities. The repeated references to a “conference” with Mr Lennard to take “instructions” indicate a discussion about the case and the evidence. We conclude that some reason for seeking his representation must have been given by the claimant to him and/or her sister, which we conclude could well have included the way in which cross-examination proceeded on day three and possibly also the claimant’s evident concerns about having to cross-examine the respondents. There must also have been some reference to the notes that she has made during her cross-examination as a request for permission to use these appeared in Mr Lennard’s email.

[61]However, even if we take the claimant and Mr Lennard’s submissions at their highest, this will not be enough to absolve the claimant of any unreasonable conduct. Her conduct has introduced a lack of certainty and a lack of trust into the proceedings. She has, it seems, gone directly against an express instruction of the Tribunal. Mr Lennard has assisted her in this, knowing she was under oath at the time. Such consequences are precisely why warnings like this are given to a claimant and why they are so important. Even if we were to accept the claimant’s submissions at their highest, the Tribunal now has considerable uncertainty as to what extent the claimant has discussed her case with others while under oath and what was said. The procedural safeguards in place to ensure the fair administration of justice have been undermined by their actions.

[62]The Tribunal also notes that the claimant was reminded of the need for reasonableness in the conduct of the proceedings after her application on day 1 of this hearing. She was told by the Tribunal on day 1 when giving the decision on her application: “considering the extensive legal support and advice given to the claimant these applications should have been made earlier so that the respondents could have dealt with them so as not to prejudice the final hearing. [……] It is too late for her to seek to change the presentation of her claim what was literally minutes before the start of the final hearing. This is not reasonable conduct in the proceedings.”

[63]Turning to the second question in Bolch v Chipman - is a fair trial still possible? The Tribunal is unable to be confident that the claimant’s remaining answers to cross-examination have not been interfered with in any way. We have already identified the importance of reliable and credible witness evidence. We are not confident that the claimant has appreciated the need, in line with the overriding objective, to co-operate with the Tribunal and the respondents to ensure a fair hearing. The reliability of the claimant’s evidence and also the trust in the claimant has been irreparably damaged and therefore we do not consider that a fair trial is still possible.

[64]Turning to the third relevant factor in the list from Bolch v Chipman, we have considered whether any alternatives to a strike-out of the claims in their entirely would be possible. We have considered the following but found them not to be appropriate.a. Would it be possible to strike out the case against R2 only, given that cross-examination of R1 has been completed? However, R2 is a key figure in these proceedings and the primary person against whom complaints of race discrimination are made. It would be very difficult to separate out the evidence in such a way, especially given that the claimant’s answers in cross-examination have referred to a conspiracy to discriminate by the respondents.

b. Would firm case management provide a solution to these issues? We have no confidence that it would, due to the findings that there has been an element of the claimant’s conduct that has shown suggestions of wilful, deliberate or contumelious behaviour, as will be discussed below, and due to the fact that the claimant was warned about not discussing the case during her evidence on four separate occasions.

c. Could the Tribunal recuse itself and the case be heard afresh by a different Tribunal? The balance of prejudice to the respondents is too great for this to be appropriate. There would, we note, be a real advantage to the claimant in this option, as she is over halfway through her cross-examination and knows a number of the questions that will be put by the respondents. There would also be a significant amount of costs involved and delay, which is particularly relevant given the seriousness of allegations made by the claimant in a workplace where the claimant and the respondents still operate. Are there grounds for strike out even if a fair trial were still possible?

[65]Are these circumstances such that, even if a fair trial was still possible there are nevertheless grounds for strike out in any event? Has the claimant’s behaviour been “wilful, deliberate or contumelious” (De Keyser Ltd v Wilson)? Contumelious is not a word in common usage, but means scornful or insulting.

[66]The claimant’s behaviour during the hearing has indicated some elements of all three. On the morning of day 4, she reacted with quite some exasperation at the suggestion that she had not complied with the Tribunal’s warning about her evidence, despite having volunteered that she had a conference to instruct her representative the previous evening. When the terms of the respondents’ application became clear, that she had gone against the express order of the Tribunal by speaking to Mr Lennard and her sister while under oath, her first comment when asked to respond was nevertheless “I want to speak to my lawyer”. She also did not seek to provide clarification upfront as to the extent of her contact with Mr Lennard or her sister.

[67]Detailed information, such as it was, only came out piecemeal following further questions and submissions from counsel and questions from the Tribunal, and so there was something a lack of candour from claimant, including the failure to show her telephone call records to counsel when asked, and an apparent inconsistency in what the Tribunal was told at various points from the receipt of Mr Lennard’s email onwards. She also sought to move the discussion on to what she perceived to be the more important issue of alleged inaccuracies in Word documents in the bundle, rather than discuss the strike-out issue further. Finally, as has already been said, she was given four warnings not to discuss the case while under oath yet still did not wish to clarify what had happened until she had spoken to Mr Lennard.

[68]We have taken into account that the claimant was a litigant in person. However, she was represented until 8 Nov 2023, and said that the RCN “continued to support” her afterwards. She did not have to prepare her statement or the bundle or a list of issues as this had been done for her by her previous counsel. The Tribunal has taken care to explain issues of procedure to her. In any event, the instruction not to discuss the case while under oath is a simple, clear instruction capable of being understood by a litigant in person.

[69]The claimant gave no indication at the end of day three that seeking representation was a prospect. There was a case management discussion at the end of day three about timetabling and cross examination of the respondent’s witnesses and the claimant gave no indication that she was going to spend the evening seeking legal representation. Had she done so, we would have warned her in detail about the consequences of that. The claimant is entitled to representation at any stage in the proceedings, but the key difference here is that the claimant was under oath. Had she waited until her evidence was finished, which was likely to be in the afternoon of day 4, there would have been little issue with her providing instructions to Mr Lennard and with him representing her for the rest of the proceedings, which were likely to go part-heard.

Conclusion

[70]In conclusion, we have no confidence in being able to make findings of fact on the claimant’s evidence. We cannot exclude the risk of the claimant having been advised as to how to answer questions in the remainder of her cross-examination, which still has some way to go. Although Mr Lennard has told the Tribunal that he did not do this, we cannot exclude the risk of the claimant having discussed her evidence with her sister either. What was said by the claimant and Mr Lennard on day 4 did not give us sufficient reassurance. The warning given to parties under oath is there for a good reason, so that evidence is not at risk of being tainted and can be confidently assessed by the Tribunal.

[71]We do not find that the unreasonable conduct is reversible. We consider that irreparable damage has been done to the Tribunal’s trust in the claimant. Even if the claimant and Mr Lennard’s submissions are taken at their highest (and noting the absence of any clear information about the extent of the involvement of the claimant’s sister), the claimant’s evidence and participation in the proceedings is tainted in a way that is hard to assess and prejudices a fair and proper determination of the case.

[72]To quote HHJ Eady KC (as she was then) at paragraph 41 of Chidzoy, “… it is unlikely that the warning will ever be expressed in terms as a formal Order of the Court or Tribunal but its purpose and the importance of compliance will be clear: the evidence given must be that of the witness and if others might have influenced the content or manner of that evidence, it will be tainted in a way that is hard to assess and might thus prejudice the fair determination of the case.” (our emphasis added)

[73]The case is therefore struck out.