Mr D P Hoppe v HM Revenue and Customs and Others: 2408488/2015 and 2400171/2019

EMPLOYMENT TRIBUNALS

Case No 2408488/2015, 2400171/2019

Between

Mr D P HoppeClaimant

HM Revenue and Customs and OthersRespondent

Before

Regional Employment Judge Parkin

In attendance by telephone for claimant

1) HMRC: Mr J Hurd (instructed by Counsel) for respondent

Date 22 June 2023

JUDGMENT

[1]Case No 2408488/15 (presented on 30 October 2015): The claimant’s claims of being subjected to detriment for having made protected disclosures are struck out as having no reasonable prospect of success. His claims of ordinary unfair dismissal and “automatic” unfair dismissal for having made protected disclosures will proceed.

[2]Case No 2400171/19: The claimant’s claims against the second, third and fifth respondents are struck out as having no reasonable prospect of success. The claimant’s claims against the first and fourth respondents will proceed.

REASONS

Introduction

[1]The Preliminary Hearing The hearing was to consider applications by various respondents in these two claims to strike out the claims against them. It was held in public over two days, with the claimant attending by telephone. By way of introduction, the Tribunal provides a general overview of all the claimant’s claims and then greater detail about each of them.

[2]Overview of claims2.1 In summary, the claimant then a civil servant within the Commercial Department of Her Majesty’s Revenue & Customs (HMRC) contends that in December 2009, HMRC was embarking on illegal action which was not compliant with public procurement law. He was responsible for managing the SPRINT contract, with the supplier SCC, but was then advised that all HMRC expenditure on the SPRINT IT framework was to be switched to the alternative ASPIRE framework provider Capgemini with a novation of contracts from SCC to Capgemini, under a “deal” called Managed Office Infrastructure Services (MOIS). He refused to assist with this unlawful procurement and contends that he was thereafter sidelined, bullied, harassed and victimised as a result of raising his concerns with senior management, some of which were protected disclosures.

2.2 Later he contends that a flawed Internal Governance report IG355 wrongly exonerated HMRC despite his criticisms and despite the fact that Malcolm Edis, a Government lawyer had presented at a training day that the MOIS deal was illegal and that he, Mr Edis, had advised against it. As time progressed, the claimant claims he continued to make public interest disclosures and suffered extensive mental health breakdown and consequences from the respondent’s behaviour towards him. He contends that his eventual dismissal in 2015 was because he had made the protected disclosures or was ordinarily unfair and that he had been subjected to many detriments though actions or failures to act by others alongside his employer HMRC.

2.3 His claims in these two sets of proceedings are brought against HMRC, his former employer, but also against central Civil Service departments, officers, pension administrators and health providers for detriments subsequent to his dismissal. The claims need to be considered within the context of the various sets of proceedings commenced by him.

[3]Case No 2409957/2013 (The 2013 claim) Presented on 25 July 2013. Respondent HMRC only. Protected Disclosure detriment claim3.1 In this claim, explaining he had been an established civil servant since 1984 and had joined the Inland Revenue which became HMRC in 1991, the claimant set out that he had cause to raise concerns at the level of professional standards demonstrated by senior management and felt he had been treated unfavourably as a result, for instance by the withdrawal of temporary promotion and change of duties. He had raised further significant concerns about a commercial deal (MOIS, Managed Office Infrastructure Services) in which he was asked to execute the movement of works contracted from one framework to another. Whilst the response to his concerns was inconsistent, he was advised of management's view that he was not considered suitable for promotion or progression, which he took to be management bullying harassment and victimisation and raised a grievance about. The investigation of his grievance was delayed with no attempt to restore the trust and confidence by his employer, leading to a very detrimental effect on his physical and mental health. He now considered his place within the Commercial Directorate untenable.

3.2 The respondent presented a vigorous response to his claim, contending that his grievance had been dismissed and his appeal not upheld, denying that any complaints he had raised constituted a protected disclosure or that he had suffered a detriment as a result.

3.3 There were a number of hearings and several Case Management Orders resulting in an Unless Order that he provide a witness statement or his claim would be struck out which was issued against the claimant on 3 March 2016, when a final hearing was listed. He did not comply and on 17 March 2016 the Tribunal confirmed this claim had been dismissed for failure to comply with the Unless Order.

3.4 The claimant’s application for relief from sanction was then refused (on written representations) in a Judgment and Reasons issued by Employment Judge Porter on 18 August 2016. The claimant’s appeal was unsuccessful. This claim is concluded.

[4]Case No 2408488/15, against HMRC only Unfair Dismissal and Protected Disclosure claim, originally rejected because of wrong payment of Issue Fee. When re-presented, led to Preliminary Hearing on 26 January 2016 at which it was dismissed by Employment Judge Holmes for having been presented out of time. The claimant’s appeal against this judgment was originally unsuccessful (before the Supreme Court judgment in the UNISON judicial review of ET fees proceedings) and was then referred back to the Tribunal by the EAT after that judgment declaring the introduction of fees unlawful. By a Case Management Order sent to the parties on 11 April 2018, Regional Employment Judge Parkin ordered that the original claim form presented on 30 October 2015 be treated as if it had been validly presented. The claim is therefore now identified as Case No 2408488/15 (presented 30 October 2015), (The 2015 claim). Respondent: HMRC only.4.1 Alongside unfair dismissal, the claimant claimed he was subjected to unlawful detriment for raising concerns under a protected disclosure, breach of trust and confidence and breach of contract against HMRC and failure in its duty of care. Referring back to the 2013 claim he stated that the matter was a continuation of the detriment, in circumstances where the respondent had failed to deal with his grievance and he had only brought the 2013 claim once it was apparent the respondent would take no further action upon it. The respondent had made no attempt to repair working relationships after the 2013 claim was filed and he had made further protected disclosures concerning the legality of actions in the workplace and concealment/failure to address concerns raised in relation to the production of a corrupt report. Identification of the errors in the IG355 report had prompted the threat of disciplinary action. He set out that he would raise a Scott schedule of disclosures and detriments raised, asking that the claim be joined with the 2013 claim.

4.2 In its resubmitted response presented on 9 May 2018, HMRC admitted that the claimant had been dismissed on 11 June 2015 after employment as a Higher Officer in its Commercial Directorate, working as a commercial manager. It contended that he had covertly recorded a meeting with one of his managers in August 2014 and then in September 2014 in the course of disclosure within the 2013 claim, he provided its representatives with a memory stick including transcripts and audio files of 5 meetings with his manager/senior manager recorded without consent. That matter was passed to its Internal Governance section to investigate and the investigation found that the claimant accepted he had made the recordings, having felt discriminated against and victimised and thinking his actions reasonable and justified and the investigation to be grossly inconsistent and unfair. He said that he understood that a covert recording could lead to a damaging effect on trust and confidence but felt those had already been destroyed by the respondent’s bullying, harassment and victimisation of him and that, had he been aware that it viewed covert recording as gross misconduct, his actions would have been different.

4.3 The claimant did not attend the initial disciplinary hearing, having gone off sick and the rearranged hearing was postponed when his representative informed the respondent that he had sustained a “mini breakdown”. The Occupational Health advice was that the claimant could engage in the disciplinary process with assistance either by correspondence or by appointing someone to assist him in the process and allow further time. Whilst the claimant requested HMRC appoint an employment lawyer to assist him, he was told its guidance did not permit the attendance of legal representatives but his union could support him and an HR representative could attend to explain the process or he could make further representations. He then made clear he wished the process to go ahead through correspondence and responded to further questions put by the decision-maker.

4.4 HMRC contended it then dismissed him for gross misconduct since he had breached its Professional Standards resulting in the breakdown of the relationship of trust with him. The claimant appealed, an appeal hearing took place which he attended but his appeal was rejected. HMRC denied any procedural unfairness contending it acted reasonably in treating the claimant’s misconduct as a sufficient reason for dismissing him and dismissal was a reasonable sanction but, if the dismissal was unfair, the claimant have contributed significantly to the decision to dismiss. It denied that he had been dismissed or subjected to detriment for having made protected closures and asserted that he had not properly specified the detriments he alleged or indeed the protected disclosures relied upon. The respondent contended it simply did not understand the claimant’s breach of trust and confidence, failure to comply with duty of care and breach of contract claims.

4.5 There was a Case Management Hearing on 30 July 2018 but the claimant did not attend, relying upon medical evidence from Dr Brickwood but not seeking a postponement because of his non-attendance. By the Case Management Order sent out on 3 August 2018, the claimant was ordered to provide further information confirming whether he was claiming both ordinary unfair dismissal and automatically unfair dismissal for having made a protected disclosure and identifying the disclosures made and detriments alleged together with any other claims he sought to make by reference to the statutory provisions relied upon.

4.6 The claimant provided further information on 26 August 2018 confirming that he was claiming both ordinary and automatic unfair dismissal for having made a protected disclosure and enclosing a 44-paragraph clarification of box 8.2 of his ET1 claim, with still further information on 25 September 2018 and 19 October 2018. The respondent presented its Amended Response on 11 January 2019, contending the claimant had still failed to particularise his claims sufficiently.

4.7 By letter dated 25 September 2018, the claimant identified 9 disclosures to a variety of HMRC and Civil Service personnel made between 5 August 2013 and 18 May 2015, albeit maintaining that his list was not exhaustive, adding further detail to this on 19 October. He enclosed a useful narrative “clarification of section 8.2” of his Et1 claim form on 25 September [185-188/2015], which was treated as amendment to this claim and on 19 October 2018 he produced a copy of his email dated 18 May 2015 to Jenny Grainger [194-201/2015].

4.8 The respondent provided an Amended Response on 11 January 2019.

4.9 The claimant provided his comments upon the Amended Response, and provided a new schedule of detriments identifying 20 separate acts of detriment on 25 January 2019. All these acts were described as “ongoing”, with his description of the “type of failure” being “breach of trust and confidence, employment terms, duty of care” in all cases with “PIDA protections” and “Human rights” stated in respect of some detriments.

4.10 By a further Case Management Order sent out on 4 March 2019 following a Case Management Hearing on 18 February 2019, the claimant was ordered to identify his protected qualifying disclosures by reference to the types in section 43B (1) (a) – (f) of the Employment Rights Act 1996 and to give detail of the specific acts of unlawful detriment he alleged he was subjected to (as distinct from any consequences flowing from that act).

4.11 The claimant then provided a further submissions document dated 21 March 2019, by email dated 24 March 2019.

4.12 The respondent provided a Supplemental Response on 7 May 2019, contending that the claimant had still failed to comply with the case management order in dealing with his alleged protected qualifying disclosure and acts of detriment and indicating its intention to apply to strike out claims. The respondent made its first formal application to strike out the claims or parts of them or in the alternative to seek a deposit order by letter dated 5 June 2019.

4.13 At another Case Management Hearing on 12 June 2019, which the claimant attended by telephone, the respondent contended that the claimant had still failed to set out properly the basis on which he alleged the 9 disclosures to be protected qualifying disclosures or of which type or to identify any detriments. It therefore sought to regard the only whistleblowing claim as his claim of automatic unfair dismissal, denying also that the claimant had identified any actionable claims of breach of trust and confidence, failure of duty of care and breach of contract.

4.14 The Tribunal’s further Case Management Order from that hearing was sent out on 5 July 2019, listing a preliminary hearing to consider the respondent’s strike out or deposit applications. The Judge had preferred the respondent’s contention that this form of preliminary hearing should be listed to the claimant’s contention that a final hearing to consider all his allegations should next be listed.

4.15 By letter dated 17 June 2019, the claimant first proposed that he shortened his claim with a “short case”. He proposed that the “complicated matters” be trimmed down to “A) The respondent’s corrupt production in 2014 and nature of the IG355 report determining the respondent’s prejudicial assertion that it has been behaved correctly. This being evidence used in the dismissal proceedings. B) The respondent’s decision to take disciplinary actions following the disclosure of evidence in 2409957/2013. C) The respondent’s failure in January 2015 to follow its own procedures and maintain a duty of care by considering the impact of its actions upon me and directly causing the breakdown suffered in March 2015. D) The failure of the disciplinary investigation to determine the reasons for the action I took and ignoring the evidence presented. E) The failure of the disciplinary appeal hearing to focus on other than the respondent’s protection from constructive dismissal and ignoring the reasons and evidence presented of the reasons for my actions.”

4.16 He supported this suggestion on 12 July 2019 in an email under the heading “Review and clarification” enclosing his “Short Case Narrative”, “Short Case” disclosures table of 5 disclosures and “Short Case” schedule of 18 detriments and a list of applications. The 8-page narrative, which is probably the most clear explanation of the claimant’s case provided by him within the proceedings, concludes with: “In terms of the 3rd consideration (which the claimant had identified as the respondent claiming matters some had already heard in 2409957/2013), the above makes clear what was in 2409905/2013 and what is in 2408488/2015. All the acts of detriment identified are between June 2013 and October 2015.” In terms of the 4th consideration which he identified as: “Intimation of being out of time”, he wrote: “As has already been indicated the acts are a series of acts that show a consistent behaviour from the respondent leading to the dismissal via a process that simply will not accept the nature of the HMRC actions or the context. This has already been challenged on time and has spent 2½ years waiting partly due to the Employment Tribunals refusal to listen to the points made by the claimant before being accepted as having been in time.” Summary: “Whilst there are many aspects to the case the case is really quite simple in nature and can be outlined with the following bullets:-

• HMRC loses control of ASPIRE and resorts to illegal actions to keep Capgemini content.

• I refuse to engage in the appeasement and identify where things are going wrong.

• Rather than be honest HMRC reacts against me and victimises me through BHV (bullying, harassment, victimisation), failure to investigate BHV, failure to conduct grievance properly.

• I file 2409957/2013.

• HMRC take all steps to conceal even clumsily such as IG355.

• I disclose further damning evidence in covert recordings.

• Employment Tribunal seek to not apply the law and co-operate with the concealment

• HMRC continues to try to bully me into submission and hold dismissal over me by an unfair disciplinary process based on previous failures as holding veracity.

• I aim further PIDA disclosure at Jenny Grainger and HMRC terminates employment rather than lose another SCS through failure to act.

• Employment Tribunal still seek not apply the law and cooperate with concealment. Its not that complicated…”

4.17 HMRC by letter dated 31 July 2019 made clear that it pursued its strike-out applications notwithstanding the claimant’s shortening of his claim, saying it was always open to him to withdraw parts of his claim expressly. It renewed and expanded its strike-out application (extending to 37 pages) on 5 September 2019.

4.18 The claimant provided his detailed comments upon the strike-out application on 23 September 2019, in a “slightly revised” document with a new version of his “short case” disclosures table and schedule of detriments. 6 disclosures and 18 acts of detriment are tabled. For the first time in that disclosures document, he identified the subsections of Section 43B (1) he relied on in respect of each disclosure, which are as follows:

[1]January 2010 onwards. Disclosure made to: HMRC Commercial Directorate Management at various levels. Stuart Bishop, Tom Carter, David Penny, David Henderson. Identified the illegal nature of MOIS and several other concerns of mismanagement of the commercial relationship between HMRC and Capgemini. Formalised in written disclosure made in 2011. Section 43B(1), A, B and F

[2]24 July 2013. Disclosure made to: David Odd HMRC. Concealment by mishandling evidence. Section 43B(1) C.

[3]12 June 2014. Disclosure made to Simon Bowles HMRC. Fraudulent investigation and determination of original consenting reasons BHVD processes. Section 43B(1) C

[4]25 June 2014. Disclosure made to Internal Governance Lin Homer HMRC. Section 43B(1) C and F.

[5]30 January 2015. Disclosure made to Lin Homer HMRC. Original concerns failure to investigate fraudulent actions of concealment. Section 43B(1) C and F.

[6]18 May 2015. Disclosure made to Jenny Grainger. Fraudulent behaviours concealment. Section 43B(1) C. 5 Case No 2404018/17 UDL/PID Presented on 18 August 2017 (The 2017 claim) Respondents(1) HMRC;

(2) Health Assured Ltd;

(3) National Audit Office;

(4) Independent Police Complaints Commission (the IPCC). Unfair dismissal and detriment as a result of making protected disclosure claims.

5.1 The claimant expressed his concerns at the working relationships at HMRC which were detrimental to his health and well-being and destroyed trust and confidence. His complaints of bullying harassment and victimisation had been dealt with outside the designated processes and timeframes. An Internal Governance IG355 report was commissioned and prepared but refused to accept relevant evidence and its conclusions directly contradicted the evidence available and was "nothing short of a fraudulent document". He contended that report was then relied upon in disciplinary proceedings in which he was dismissed. He then complained to the IPCC about the corrupt behaviour of Internal Governance but HMRC declined to refer the complaint and the IPCC declined to call it. Then the National Audit Office also failed to investigate or determine his specific concerns.

5.2 He maintained that, at the point of dismissal, he should have been advised of and invited to make a claim under the Civil Service Injury Benefit Scheme, with a view to compensation for ill-health arising directly from the toxic working environment and detriments. HMRC failed to initiate such an invitation and then eventually when Health Assured Ltd conducted an assessment it failed to act independently and review its assessment in time. The claimant explained the timing of this 2017 claim making clear he was presenting it within 3 months of 30 June 2017, when Health Assured Ltd ceased to be the CSIBS assessor and had shown its position not to be independent.

5.3 At a Preliminary Hearing on 8 February 2018 before Employment Judge T Ryan, the claims against National Audit Office and the IPCC were dismissed as having no reasonable prospect of success. Health Assured Ltd’s application for dismissal on the basis of having no reasonable prospect of success was postponed.

5.4 An appeal to the EAT was rejected as being out of time. This claim was later stayed but is still live in respect of HMRC and Health Assured Ltd. 6 Case No 2413478/18 Presented on 17 July 2018 (The 2018 claim). Respondents (1) Cabinet Office; (2) Civil Service Commission. Protected disclosure detriment claim.

6.1 Explaining that the 2 respondents fell within the wider definition of employer contained in PIDA, the claimant claimed detrimental treatment following whistleblowing. He maintained that the Civil Service had split its responsibilities and actions into a number of different entities such that his direct employer HMRC had function and governance outsourced to the other civil service entities, the Cabinet Office and Civil Service Commission which carried out Internal Governance on the behaviours of employees of the civil service. He referred to his previous claims, especially the 2017 claim. The claimant concluded his ET1 form at Box 15 stating: "This claim shall need to be combined with the previous claims made and be heard together. The claim contains act of failures to act causing detriment that demonstrate a consistent pattern of failure to acknowledge the detriments caused an validity of the original concerns and failure to adhere to its own policies and behaviour that fails to maintain trust and confidence".

6.2 Both respondents resisted his claims contending the Tribunal had no jurisdiction to hear them as they were not his employer, contending also that they were out of time and not presented in a form that could reasonably be responded to.

6.3 At a Preliminary Hearing on 25 March 2019 before Employment Judge Ross, the claim against each respondent was struck out as having no reasonable prospect of success.. Although a late direction had been made to combine the 2019 claim with this claim for the Preliminary Hearing, she felt unable to deal with the 2019 claim since a conflicting direction had also been made in the 2019 claim not to combine them. This claim is concluded.

[7]Case No 2400171/19 Claim presented 20 December 2018 (The 2019 claim) Respondents:(1) HMRC;

(2) MyCSP;

(3) Health Management Ltd (HML);

(4) Cabinet Office;

(5) Minister for the Civil Service (The Minister). Protected disclosure detriment claim.

7.1 The claim: Under box 4: “Cases where the respondent was not your employer”, the claimant wrote: “Detriment following PIDA disclosures” and at box 8.1: “This claim is a further claim linked directly with the previous claims 2409957/2013, 2408488/2015, 2404018/2017 and 2413478/2018, identifying further acts of detriment and continued failure to actions previously identified in earlier cases causing continued detriment”.

7.2 He claimed that in 2010 HMRC took illegal actions and gave directions to him to undertake acts that breached the law, which he refused. He had raised concerns which met the criteria in PIDA. but HMRC denied the validity of the concerns in further breach of trust and confidence, creating a toxic workplace which impacted his mental health and well-being. HMRC continued a course of concealment of the illegality and denial of responsibility for the impact upon his health and well-being.

7.3 He set out that prior to his dismissal by HMRC, he had made a claim and had an award under the Civil Service Injury Benefit Scheme (CSIBS). He made a claim for a permanent award after dismissal, for which Case No 2408488/15 relates as unfair dismissal, which had direct conflict with the legal proceedings in which HMRC denied both the existence of his illhealth and its responsibility for it. That CSIBS claim had by acts of maladministration and general obfuscation taken an inordinate length of time to progress.

7.4 He said he had made a PIDA disclosure on 22 November 2018 to HMRC, Cabinet Office and the Minister for the Civil Service, identifying the failure by HML to produce an independent assessment of impairment in accord with CSIBS Rules, the failure by MyCSP to investigate the maladministration by HML, such actions being taken on behalf of the corporate Civil Service employer, being part of a consistent refusal to acknowledge or accept the responsibility for and ill health caused by HMRC.

7.5 He described the dates of the failures to act as by HML: 30 July 2018: date of the last expected communication to respond to his Med 9 complaint; by MyCSP: 9 October 2018, the date MyCSP withdrew from IDR Stage 1 review and by HMRC, Cabinet Office and the Minister: 14 December 2018, the date 3 weeks after his protected disclosure and IDR stage 2 application with no action.

7.6 Under Box 9.2, he explained the compensation or remedy he was seeking as: “In the absence of an independent assessment under the CSIBS scheme rules, I am seeking a lump sum compensation payment equivalent of the proper award. In respect of the ongoing injury to feelings and ill-health directly attributable to the continued acts or failures to act, I see the recognised sum of compensation with 25% enhancement is the respondent’s actions continue to be aggravation of the impacts upon me.”

[8]Case No 2400171/19: ET3 responses8.1 HMRC denied the claims against it. After setting out the history of the other claims, it contended the claimant had not clearly specified any protected disclosure, despite on 21 November 2018 sending a letter sent to its CEO, Mr Jon Thompson, amongst others headed “PIDA disclosure”, other than on 22 November 2018 sending a further letter to Mr Thompson enclosing an IDR Stage 2 application form (an Internal Dispute Resolution Stage 2 applications within the Civil Service Pension scheme). He had not explained why he considered that 22 November 2018 letter a qualifying disclosure; HMRC denied it was a qualifying disclosure. It contended that the only detriment the claimant had particularised was HMRC taking no action after receipt of his letter of 22 November 2018, which could not constitute a detriment. Mr Thompson had replied on 17 December 2018 that HMRC would not comment on the matters raised until the current litigation had concluded; there was no detriment in not responding further and HMRC had no direct role to play in responding to the claimant’s IDR2. HMRC considered the claimant’s claim an abuse of process to the extent that it raised matters which were already being dealt with within the other claims or which had been raised in the 2013 claim.

8.2 MyCSP contended that it had no dealings with the claimant after October 2018 and that he had failed to provide adequate particulars. He was at no time its employee, worker, selfemployed consultant, agent or otherwise and it had no contractual relationship with him. It was the administrator of the civil service pension and benefits scheme; as an employee of HMRC, he was a member of the Civil Service Injury Benefits Scheme (CSIBS), a statutory scheme under section 1 of the Superannuation Act 1972 with rules as to the payment of benefits where required criteria have been met which it administered in accordance with the rules and guidance provided by the Pension Schemes Executive. On 30 May 2018 the claimant complained under an Internal Dispute Resolution (IDR), a statutory process with 2 stages: stage 1 - the scheme manager, Cabinet Office (on behalf of the Minister for the Civil Service) arranging for it to complete an initial investigation and provide a determination. At Stage 2, the Cabinet Office completes an investigation and provides a determination.

8.3 The claimant’s complaint concerned the outcome of his Injury Benefit Appeal under CSIBS, citing maladministration by HML, the scheme medical adviser. MyCSP’s response at Stage 1 IDR was provided on 22 August 2018, with the conclusion that the claimant’s complaint was upheld in part but that there was not enough evidence to suggest the actions of HML when completing the medical assessment had any impact on the ultimate outcome provided. MyCSP informed the claimant his complaint had been investigated without sight of the medical report produced by HML since he did not provide the required consent for this report to be released to MyCSP but that, if he provided the consent, it would obtain and review the report and provide a supplementary IDR Stage 1 response. It also notified the claimant his right to pursue IDR stage 2. MyCSP contended it was an external provider of administration services with no contractual relationship with the claimant. The Tribunal had no jurisdiction to hear the claim against it which should be dismissed or struck out as having little prospect of success and it made a formal application to strike out the claim against it relying upon the lack of contractual relationship with the claimant. It denied the claimant made a qualifying disclosure within section 43A Employment Rights Act 1996 or was subjected to any detriment contrary to section 47B, in particular that any failure to complete a supplementary stage 1 IDR response was an act of detriment or because of any disclosure.

8.4 HML set out that it is a health provider advising on eligibility for injury awards and early illhealth retirement under a variety of pension schemes. It was awarded the contract to advise the Principal Civil Service Pension Scheme (PCSPS) on ill-health retirement under the various pension schemes which had previously been delivered by Health Assured Ltd. It averred that the claimant could only bring a claim for detriment against his employer HMRC in respect of detriment caused by the first respondent or another worker of HMRC or an agent of HMRC with its authority. It had never been the claimant’s employer nor an agent of HMRC; it was entirely separate and independent from HMRC and the claimant had never been its employee or worker or in any contractual relationship with it. He did not come within the extended definition of worker at sections 230(3) or 43K of the Employment Rights Act 1996. HML denied that the claimant had made any protected disclosure in relation to its actions or that it had subjected him to any detriment as a result and contended his claim was out of time in any event and there was no reasonable prospect of success. It followed this up with a formal application to strike-out on 8 February 2019.

8.5 The Cabinet Office and the Minister presented their response together, denying the claims in their entirety. It stated that the Cabinet Office was a ministerial department, supported by 19 agencies and public bodies which supported the Prime Minister and ensured the effective running of government, being the corporate headquarters of government in partnership with HM Treasury and taking the lead in certain policy areas. The Prime Minister is the Minister for the Civil Service, but delegates the management of the Civil Service to the Minister of the Cabinet Office under section 1(2) of the Civil Service (Management Functions) Act 1992. All civil servants are Crown employees under the definition at section 191 ERA 1996, and appointment of them and terms and conditions are delegated to departments, acting as agents of the Crown in relation to their employment, within the framework laid down by the Constitutional Reform and Governance Act 2010 (CRaGA). The claimant had never been directly engaged by either respondent. Furthermore, section 17 of the Crown Proceedings Act 1947 provides that all proceedings against the Crown should be instituted against the appropriate authorised Government department and only the Cabinet Office and HMRC are such authorised departments, so HMRC was the appropriate authorised department to be respondent.

8.6 These respondents denied any disclosure within section 43A ERA 1996 was made or that the claimant sustained any detriment; they had no legal responsibility for the claimant or his complaint. He had ceased to be a civil servant in 2015 and never worked for either of them, with no requirement for them to take any action. The Cabinet Office and the Minister applied in the response for the claim to be struck out as being scandalous or vexatious or having no reasonable prospect of success and applied formally by letter dated 23 April 2019, relying in particular upon the findings of Employment Judge Ross in case no 2413478/18.

[9]Case management and ground rules before the Preliminary Hearing9.1 Despite it being explained in correspondence and earlier Case Management Orders on many occasions that a ground rules hearing was not considered necessary and that there is no requirement under the Rules for such a hearing to take place, the claimant remained highly critical of the Tribunal’s approach. The Tribunal explained that there is no special importance to be attached to holding a “Ground Rules” hearing. That term, which originates from the holding of a preliminary hearing in criminal proceedings particularly to consider how the evidence of vulnerable witnesses and defendants could be received at the criminal trial, means no more than setting the “ground rules” for the next hearing, that is determining what adjustments need to be implemented in order to secure the best possible engagement in the proceedings by a party with particular needs.

9.2 In the event, and in order to seek to preserve the hearing commencing on 30 September 2019 because of correspondence from the claimant explaining his anxiety and panic attacks, the Judge did hold a “Ground Rules” hearing at 2.15 pm on 23 September 2019, notice of that hearing having been sent to the 2015 claim parties at approximately 4.30pm on 20 September. Unfortunately, the claimant did not attend that hearing, apparently not having seen the email notice of the hearing over the weekend and until after the hearing had taken place. Specifically within the 2015 proceedings, the Tribunal had seen medical evidence from General Practitioners Dr A Brickwood dated19 July 2018 and Dr J Edwards dated 5 February 2019 and had seen the full version of a report from Dr Ola Junaid, Consultant Psychiatrist, dated 3 October 2018 (the respondent HMRC having seen only a redacted version of that report). It is not in dispute that the claimant has conditions of depression and anxiety and is prescribed sertraline anti-depressants and has undergone cognitive behaviour therapy. He meets the ICD 10 criteria for a depressive episode of moderate severity F32.1. Dr Junaid felt that if the claimant had the opportunity to have his illness thoroughly treated he would be in a better position to engage with the requirements of preparing for and attending a Tribunal. However, if it was not possible for the hearings to be delayed to allow the claimant to seek treatment, Dr Junaid suggested adjustments including providing a list of questions in general areas to give him time to prepare in advance to allow him to use an advocate or supporter and to allocate additional time for him to process, prepare and respond to questions.

9.3 Whilst he has proposed stays while appeal proceedings were concluded, the claimant has not sought any deferment of the proceedings generally while he received treatment for his mental health conditions and he seeks final resolution. Some of Dr Junaid’s suggestions are obviously more relevant to a hearing involving cross-examination of the claimant.

9.4 Although not covered by Dr Junaid’s report, for a considerable period the claimant had not felt able to attend hearings at the tribunal in person through anxiety notwithstanding that, as he has explained in correspondence, he has changed his occupation and works as driver carrying out driving shifts of 4 days at a time. He has also written about his claims extensively and often swiftly upon receiving correspondence from parties and the tribunal and after case management hearings.

9.5 No other suggestions for adjustments were made by Dr Junaid although the possible consequences of the claimant not being able to fully prepare or represent himself at the Tribunal or that the experience itself might exacerbate his mental illness and facilitate a more severe episode of depression were addressed in the psychiatric report. Whilst frequently raising concerns and complaints about the Tribunal’s failure to hold a “Ground Rules” hearing or provide adjustments for him, the claimant has made little active suggestion for what adjustment would assist him.

9.6 Accordingly, at the ground rules hearing, the Judge confirmed the following adjustments: participation of the claimant by telephone, if he wished; permission for the claimant to record the hearing; mid-morning and mid-afternoon breaks, with consideration of other breaks, if needed by the claimant and the claimant having the opportunity to take stock and prepare his representations overnight after day 1. The Tribunal considered it had made considerable efforts to enable the claimant to engage with the proceedings at this Preliminary Hearing, having regard to the overriding objective and the need to seek to ensure a fair hearing, which means for all parties and not the claimant alone. However, still further adjustments needed to be made at the hearing.

[10]Case management at the Preliminary Hearing10.1 The Judge had directed that the applications in the two cases be heard together over two days. Unfortunately, the start of the hearing on 30 September 2019 was beset by difficulties in that the telephone arrangements to allow the claimant to participate did not work at the Employment Tribunal. Eventually after some unsuccessful attempts, the hearing was moved and commenced just after 11 am, at Manchester Civil Justice Centre with the claimant in attendance by telephone. The Judge identified the documents available to him in respect of the 2 claims being heard, checked that the claimant had been provided with the authorities relied upon by the respondent and explained the procedure to be followed over the 2 days listed in accordance with the procedure confirmed in the Case Management Order sent to parties on 25 September 2019.

10.2 The claimant contended that he had not had sufficient time to prepare in relation to the 2019 proceedings with confirmation that the respondents strike-out application was to be heard at this hearing only received late on 23 September 2019 such that he was only now digesting the strike-out applications. He considered that the application by the Cabinet Office to strike out his claim should not proceed since he had still not had documents disclosed to him and that its application did not reference Section 47 of the Employment Rights Act 1996. The Judge ruled that the applications in the 2019 proceedings were to proceed alongside those of the respondent to the 2015 claim. The 2019 claim respondents making applications had originally applied to strike out the claim against them several months before, in their ET3 responses when presented or soon after that. The preliminary hearing to consider those applications had originally been listed earlier than that in the 2015 claim, by a Notice of Hearing dated 24 July 2019, so the claimant had received ample notice that these applications were to be considered. In his letter dated 14 August 2019, the claimant had acknowledged the few day’s postponement of the 2015 hearing (which had been made at his request) and the bringing together of the two hearings and appeared to approve that course. On that basis, the judge permitted the respondents’ applications to proceed, anticipating that the claimant would make his oral representations on the second day, in accordance with the directions he had made.

10.3 However, on the morning on 1 October 2019, the second day, the claimant emailed the Tribunal at 08.27 writing that he was not sure what benefit the hearing could be as he was mentally exhausted and currently on a depressive dive. He contended that it would be useful to ask questions such as what event HMRC had a concern about the date of in order to assert that the 2015 claim was out of time and what acts or detriments HMRC did not understand. He was not sure that he could add anything further to his attached representations if there remained no opportunity to ask questions and address directly the undefined assertions such as "it was probably out of time". He expressed his understanding that only HMRC's counsel would be present on 1 October. The Tribunal replied at 09.10 that the Judge hoped the claimant would attend so he could make his representations orally as well as those made in writing. The Judge understood that the 2019 respondents’ representatives would be in attendance and proposed further adjustments to timing in the event that the claimant did not join the telephone conference call arranged for him.

10.4 The claimant had provided written representations on HMRC’s application in the 2015 claim overnight but said that he had unable to provide comments on the applications in the 2019 proceedings and sought extra time to put those representations in writing. In the event, he did join the hearing by conference call at the start of the 2nd day and each of the 2019 respondents resisted his application contending that it was disproportionate, that their applications were not complicated and had been made many months before. The Judge considered it was in accordance with the overriding objective to permit the claimant extra time until 4pm on 4 October 2019 provide his written representations in circumstances where he accepted that a 2-day hearing was difficult for the claimant, who had to deal with all of the respondents’ oral submissions not all of which had been preceded by a written skeleton argument or submission. The Judge did not permit further written arguments from the respondents following receipt of the claimant’s written representations, considering this would give rise to a likelihood of a never-ending exchange in circumstances where they had already made their applications.

10.5 Notwithstanding his desire to give written representations only, the claimant wanted to make the point that he not suggested he had ever been employed by MyCSP, HML or the Cabinet Office or the Minister but he was concerned with the working relationship around HMRC and the Cabinet Office which acted for HMRC. He had made an application for disclosure of documents to explain that relationship more fully which had been rejected by Employment Judge Ross in the 2018 claim, but until that disclosure was provided it would not be reasonable to determine matters. He wanted to rely upon an agency under section 47B(1A): that HMRC were in a master/servant relationship with the Cabinet Office and MyCSP and wanted the opportunity to put questions to the respondents about the relationship. The Judge ruled that it was not appropriate in a hearing based upon submissions to have questions put to the respondents’ representatives. In respect of the 2015 claim, the claimant confirmed that his written submissions made the night before were a reasonably complete response to HMRC’s application, adding only that the respondent’s argument on out of time points were not specific on any allegations, with no recognition of the acts being a series of acts the last of which was in time.

[11]The applications to strike out and the submissions The respondents’ applications in the 2019 claim11.1 MyCSP did not provide a skeleton argument but relied upon its Grounds of Resistance within its response at [41-52/2019] where it applied to strike out the claim against it, supported by its letter dated 23 April 2019 [102/2019]. It submitted briskly that the claimant simply failed to meet the definition providing the protections under section 47B of the Employment Rights Act 1996, citing in particular the judgment of Employment Judge Ross made on 25 March 2018. The claimant was not an employee or worker under the extended definitions at sections 43K and 230(3), as he himself confirmed for instance at [99/2019], and did not fall within Section 47B(1). Judges Ross and Ryan had rejected any argument of an “overarching corporate employer”.Anticipating an agency argument by the claimant under Section 47B(1A), it contended there was simply no contractual relationship between HMRC and MyCSP which could give rise to a relationship of agency; MyCSP was only the pensions administrator for the Civil Service pensions and benefits schemes providing services under a contract to the Cabinet Office only, not an agent of the first respondent. Accordingly, the Tribunal simply had no jurisdiction to consider a protected disclosure claim against MyCSP. If the tribunal had jurisdiction, there was no reasonable prospect of success.

11.2 HML expanded upon its skeleton argument dated 23 September 2019. It adopted MyCSP’s arguments citing the same legal principles and the same earlier 2018 judgment, stressing that the claimant's employment had ended on 11 June 2015 but HML only become health adviser to advise the Principal Civil Service Pension Scheme on matters such as early ill-health retirements 2 years later on 1 July 2017, having been awarded the contract in January 2017 and taking over from Health Assured Ltd. The contract was with the Minister for the Cabinet Office [230 and 236/2019] Alternatively, HML also contended the claim should be struck out as having no reasonable prospect of success where there was simply no contractual relationship established between it and HMRC and it could not be said that it was HMRC’s agent.There was no reasonable prospect of success with the claim so plainly out of time. The 3-month time limit at section 48 (3) ERA applies to a section 47B claim by virtue of section 48(1A). The last complaint of the claimant (as a failure to respond to the Med 9 complaint) related to 30 July 2018; the normal 3-month time limit would expire on 29 October 2018, but the claim was not presented until 20 December 2018 with ACAS notification on 15 December and the certificate issued on 17 December 2018; the claimant was already out of time to notify ACAS with no evidence of it not being reasonably practicable to do so in time especially when he attended a Case Management hearing on 13 November 2018 in the 2018 claim, when time issues were discussed and he did not contact ACAS for another month. HML had raised the time point firmly in its response [60/2019] and its application to strike out on 8 February 2019 [96/2019] and the claimant was therefore on notice to provide some evidence that it had not been reasonably practicable to present it in time. Alternatively, HML asked the Tribunal to make a deposit order against the claimant relying on the same basic arguments.

11.3 The Cabinet Office and the Minister relied upon their skeleton argument dated 23 September 2019 and also contended that there was no employment relationship with the claimant nor did he fall within the extended categories at section 43K. They likewise relied upon the earlier Judgment of Employment Judge Ross [134 at 138/2019] where she cited from the claimant’s own submission in the 2018 proceedings [99/2019], then finding that the claimant was an employee of HMRC but with no relationship of agency with the respondents in those proceedings (Cabinet Office and the Civil Service Commission). The claimant was simply an employee of HMRC, with no suggestion of the extended definition of worker at section 47K applying, having regard to the guidance in McTigue v University Hospital Bristol NHS Foundation Trust [2016 IRLR 742 at paragraph 38, since there was no introduction or supply of the claimant by these respondents. The Minister i.e. the Prime Minister was even more remote since he delegated the management of the Civil Service to the Minister for the Cabinet Office under Section 1(2) of the Civil Service (Management Functions) 1992. Whilst accepting that civil servants were Crown employees within the definition at section 191 of ERA 1996, the Crown Proceedings Act 1947 requires that proceedings against the Crown are brought against the appropriate government department which was plainly HMRC. The Cabinet Office and the Minister sought also to have the claim struck out on the broader merits; since they had no legal responsibility to act, no detriment could be established; the claim should be struck out as having no reasonable respect of success under the principles in the Employment Appeal Tribunal authority of London Borough of Harrow v Knight

[2003] IRLR 140

[12]The claimant’s submissions in respect of the 2019 claim12.1 In his written submissions initially on 1 October 2019, the claimant contended the Tribunal had continued to ignore his requests for adjustments and that it was unrealistic for him to provide a final response to the applications to strike out his 2019 claims. He maintained his higher levels of anxiety were caused by the continued awkwardness and failure of the Tribunal to make clear and apply reasonable adjustments in a consistent manner. He objected to the late provision of documents by the respondents and that he would not be permitted to ask questions to clarify the status and responsibilities of the respondents to the 2019 claim. He identified HMRC as the employer, Cabinet Office as the PCSPS scheme manager, MyCSP (which he understood was jointly owned by MyCSP senior management and Cabinet Office) was a QUANGO contracted to Cabinet Office to deliver the PCSPS scheme administration and HML was the scheme medical adviser (as Health Assured had previously been). They all had delegated roles and responsibilities, looking at them with the knowledge and authority of the employer HMRC. MyCSP and HML worked directly to the Cabinet Office, the delegated Civil Service Department for the operation of the Employer pension scheme on behalf of and therefore as agent for all other civil service entities. HML’s argument that it only had a contractual relationship with Cabinet Office and not HMRC and hence was not the agent of HMRC was illogical and ignored the protection extended to employees under section 47B(1A) (b). There was no need for a direct contractual relationship. Had the Tribunal determined that questions should be asked, this could have established and would have evidenced the agency. Why were HML taking action? He never chose them; they were selected by the Cabinet Office with delegated responsibility for all Civil Service employers. The Cabinet Office and the Minister had focused on section 43 but ignored section 47. In any corporate organisation there is common ownership or other form of stakeholders and persons or entities that work together collaboratively, which is covered by the wording of section 47B(1A)(b).

12.2 At his request, he then provided fuller written representations on 3 October 2019, following his brief oral submissions on 1 October 2019. Given that the Crown Proceedings Act predated the CRAGA 2010, the claimant questioned whether the liability identified in the CRAGA 2010 changed the position at section 17 of the Crown Proceedings Act. He maintained that he had never claimed any of the 2nd, 3rd,4th or 5th respondents had employed him. He sought to rely upon the section 47B(1A)(b) provisions which the respondents had except HML had ignored for the most part. There did not need to be direct contractual relationship with a person or entity for them to act as an agent for the employer, the only provision was that the agent was acting with the employer’s authority; this was a key aspect as it prevents an employer shirking its responsibility by taking actions by proxy. The Tribunal must decide if the agent was acting with the employer’s authority and it was important to consider the status of the 2nd, 3rd and 4th respondent to see whether they acted as agent for HMRC. The Minister, the 5th respondent, has legal responsibility for all of the Civil Service and delegates the responsibility for management of it to the Cabinet Office.

12.3 The claimant reiterated that when he raised concerns his employer HMRC reacted adversely causing him ill-health by failing to maintain its duty of care, leading to a claim under the provisions of the Civil Service Injury Benefit Scheme, part of the Principal Civil Service Pension Scheme, an employer operated pension scheme. His claim was assessed and awarded and put into payment but then his employment terminated on 11 June 2015 and his employer was required under the terms of the pension scheme to invite a final claim under CSIBS but failed to do so. The claim was made by the completion of the appropriate form and returned to HMRC which forwarded the claim to MyCSP acting as PCSPS scheme administrators which then commissioned a medical assessment on behalf of the employer from Health Assured Ltd. Health Assured failed to operate in accordance with the scheme rules and produced a non-compliant assessment report which was not independent and ignored evidence and the 2nd report was commissioned to be undertaken by Health Assured, messed about and eventually ceased to be the scheme medical advisers. The commission to complete a medical assessment report was passed to HML which messed about for an extended period and then produced a non-compliant assessment report. When complaint was made, HML stated it had done what it was told to and would not change anything unless instructed to do so by MyCSP or Cabinet Office and MyCSP refused to do anything to uphold the scheme rules. The claimant then raised the matter with the Head of the Civil Service and started Internal Dispute Resolution stage 1 but MyCSP was at fault in completing the IDR stage 1 “investigation” of the maladministration without asking any questions or seeking evidence, until he queried this.

[13]HMRC’s application in the 2015 claim13.1 The application to strike out was based upon the claimant’s non-compliance with case management orders but also upon him having no reasonable prospects of success, as regards both the content of the protected disclosures relied upon and also the detriments alleged, with deposit orders in the alternative. Relying upon its written application, HMRC concentrated on the extensive procedural history since the claim became live again on 11 April 2018, pointing out that the Tribunal had still not made case management directions for disclosure, exchange of witness statements and listing the final hearing. Its application to strike out was not made lightly; HMRC’s preference had always been to proceed on the substantial merit. It acknowledged that the ordinary unfair dismissal claim was bound to proceed but now applied to strike out the protected disclosure detriment and also automatic unfair dismissal claims since there had been further procedural default by the claimant. Although it had previously indicated the application would only be in respect of the detriment claims, HMRC expressly relied upon the 8-stage guidance of the Employment Appeal Tribunal in Blackbay Ventures v Gafir

[2014] IRLR 416

. Throughout, the claimant had either looked at matters with his eyes closed or deliberately failed to understand what was required of him. The tribunal made two clear orders on 30 July 2018 [172 onwards/2015] and 12 February 2019 [261 onwards/2015] for clarification from the claimant, but even in his short case formulation the claimant had nowhere near correcting the default.

13.2 In terms of disclosures, he had provided 3 key documents: 19 October 2018, showing 9 disclosures [195/2015]; 12 July 2019, his second “short form” version, removing the nonHMRC recipients, citing 5 disclosures only [321/2015], and 23 September 2019, his most recent attempt to particularise the disclosures, even adding in a 6th disclosure [366G/2015]. Far from identifying each disclosure clearly, this was a new disclosure apparently made “from January 2010 onwards” to 4 individuals, with no dates and no details except a vague assertion that it was formalised in 2011. The claimant would have needed to make an application to amend to include this but it appears the reason he has added this alleged disclosure is that he has realised the significant causal difficulty with the dates of the other disclosures. In reality, the only document evidencing a disclosure is that dated 18 May 2015 to Jenny Grainger; yet HMRC’s counsel contended the claimant has never said before 23 September 2019 that this was an email; if the document existed he should have disclosed it or identified it, in accordance with the Order at [172-3, 2015].

13.3 By the second Case Management Order, the claimant was ordered to identify any other disclosures by type under Section 43B(1) but the list before the Tribunal at [366G/2015] still does not set out the detail the Tribunal ordered. Although the claimant has set out some narrative in other documents, it is his case and for him to set out clearly what each protected disclosure was, what type etc. so the Tribunal can make consequential case management orders. There are similar difficulties of lack of clarity in relation to the alleged detriments. Again there are 3 key documents: 25 January 2019, the original 22 acts of detriment [226-231/2015]; 12 July 2019, the subsequent “short case” list of detriments, now reduced to 18 [322/2015], and 23 September 2019, the 22 are again reduced to 18 but this includes a new and different first allegation [366H/2015]. There are generally no identifiable start dates, which is relevant to the ambit of the 2013 claim and the claimant’s use of the term “ongoing” with no end date is a fundamental misapprehension about a protected disclosure detriment claim since an act or inaction happens at a relatively fixed date and is not ongoing. Even those detriments which can be understood were already in the 2013 claim giving rise to issue estoppel, res judicata and abuse of process arguments; in short, the claimant is not entitled to have a “2nd bite of the cherry”, see Divine-Bortey v London of Brent, which showed that Henderson v. Henderson principles applied in the Tribunal. The dates are also important on the issue whether the claims were presented in time to give the Tribunal jurisdiction. The claimant has put “ongoing” to suggest all claims are in time, yet some detriments date back to 2009 or 2011 and cannot be in time (even acknowledging that, if there is a real factual dispute about out of time points, the Tribunal cannot decide these without oral evidence).

13.4 The Tribunal must determine whether there was any detriment in the period from presentation of the 2013 claim up to the claimant’s dismissal in June 2015 or at least up to his presentation of the claim on 30 October 2015, such that any act or series of acts is in time within section 48 ERA 1996. The respondent expanded on its written application in respect of each of the 22 or 18 alleged acts of detriment, in particular pointing to no 3 on [226/2015], where it appeared that the main allegation of detriment was bringing tribunal proceedings. This could not amount to a detriment; seeking to enforce one’s rights is not the same as having been subjected to detriment. Elsewhere, he repeatedly confused an act of detriment with the consequences of such an act. HMRC relied on the authorities of James v Blockbuster and Bolch v Chipman on the principle of striking out. It accepted this was a draconian outcome but contended there was no other proportionate response. Since the claimant had remained unable to comply with the Case Management Orders orders after 18 months, he was unlikely ever to do so and the Tribunal should proceed on his claim of ordinary unfair dismissal only. It referred the Tribunal to Harris v Academies Enterprise Trust where Langstaff P.,whilst concluding that the full Civil Procedure Rules considerations did not apply to the overriding objective in ET proceedings, held that part of dealing with the case justly is to have regard to the impact of the case upon the resources of the Tribunal and ensure that one case does not exhaust the disproportionate share and so deprive a later case of time. Notwithstanding the earlier delays which the claimant was not responsible for, there had been significant delay and lack of advance on his part since 2018. As an alternative striking out the protected disclosure claims, the tribunal should consider making an unless Order. When tested by the Judge, HMRC acknowledged there was a substantial factual overlap between an ordinary unfair dismissal and an automatic unfair dismissal claim in that the claimant was entitled to explain the context why he said that he had to covertly record meetings but this was very much more limited than a full automatic unfair dismissal consideration of the basis of having made disclosures.

[14]The claimant’s submissions in respect of the 2019 claim14.1 The claimant provided a written representation of 102 paragraphs immediately before the hearing on 12 June 2019. He contended that HMRC was itself concentrating upon process rather than the content of his claim; in complaining repeatedly of non-compliance with orders when it had raised no argument that his disclosures were not qualifying and he had tried to comply with the essence of the orders providing his 9 disclosures and had sufficiently identified communications sent making them; in respect of those he had not provided a copy of, he would be happy to provide the documents. He refuted the HMRC argument that it did not understand his disclosures or the acts of detriment he had alleged; he had expressly clarified the acts of detriment he alleged on 26 August 2018 [182-188/2015] and 25 January 2019 [218-231/2015]. On timing, he contended that it was obvious that acts included in his 2013 claim which were also included in the 2015 claim were a continuation from the 2013 claim. The detriments and in particular the impact upon his health were ongoing and so he was unable to state the end date of the act or failure to act. He had complied with the case management orders to the best of his ability. The Tribunal itself had failed to acknowledge, respond or record his applications for disclosure of pertinent evidence which would provide the greater clarity

14.2 He had provided detailed comments on 23 September 2019 on HMRC’s revised application, explaining that he had put forward his short case summary on 12 July 2019, when he had expressly dealt with the respondent’s concerns. He contended that HMRC had never fully explained what it did not understand about his disclosures and acts of detriment and this had never been clarified by the Tribunal’s Orders. By reference to a new schedule of disclosures, he explained that the applicable ERA action should be Section 43B(1) then referring to the appropriate paragraph (i.e. sub- paragraph) of the Act and reiterated that HMRC had never challenged any of the 5 disclosures made in his short case documentation as being protected and he gave further details about the disclosures made to David Odd, Simon Bowles, Internal Governance and Lin Homer, saying these should all be fully identifiable, and reiterated he had already provided a copy of the email to Jenny Grainger. He repeated that the act of detriment continued through to his dismissal on 11 June 2015 and the August appeal and were… “bloody obviously a series of connected events is indicated in the Short Case narrative”. He had only listed detriments from June 2013 onwards. He maintained that it was fundamental for the Tribunal to come to a view on the legality or not of MOIS and to determine the veracity of the IG355 report, which he maintained was a corrupt report.

14.3 On 1 October 2019, the claimant provided written representations for the 2015 claim, supporting his oral submission made on the previous day that he had presented his 2013 claim after the grievance process had been running for 12 months but that the acts of detriment had continued notwithstanding the commencement of his proceedings and the respondent took a further 9 months to deal with the grievance procedure. He drew the comparison between how he had formulated his detriment claim in the 2015 claim (his 18th detriment at [366M/2015] and detriment no 8 in his particulars in the 2013 claim [398/2015].

14.4 The claimant contended that the Blackbay Venture case determined the principle that a claimant must be able to identify a date when the respondent has made the decision to not act and caused a detriment but only if events require that that date is within the 3-week period when the act of failure to act might be expected to have been taken. This principle did not apply to any of the detriments identified in his 2015 claim since all had been identified as failure to act over such a long period of time that the three-week period to confirm the failure to act had been served in them all. The respondent had failed to identify any dates it felt showed that the case was out of time or any individual act that was out of time or was not part of the pattern of actions. HMRC’s presentation was intended to confuse and mislead with matters repeated over and over and referring to documents that did not apply, such as earlier versions of his schedules. The only reference to the short case schedule of detriment was to identify that the last detriment that had been added was new. He had in fact identified every act of failure to act in the first sentence of each item in the schedule. He urged that he had sufficiently identified the disclosures, in particular that to David Odd, who was a senior investigator in Criminal Investigation. Whilst he accepted that he was unable to give a precise date for all acts of failures to act, his narrative identified the series of events around the ongoing themes of concealment, toxic work environment, failure to assess or to take action on assessments of the impact on his mental health of the work environment and he contended that in each case he had identified the relevant dates of the last act or failure to act.

14.5 The claimant argued that the process followed in the disciplinary case was unfair by the blank refusal of HMRC to acknowledge or accept the reality of the toxic work environment and its illegality in the workplace. If that was taken away the concealment of the circumstances and the context of breach of trust and confidence in covertly recording his manager expressing negative perceptions of him for raising concerns about an illegal act would disappear as the case would lose its context completely. He summarised his submissions contending that it simply was not credible that HMRC did not understand his disclosures; HMRC were fully aware of its illegality and had been told what it was doing was illegal by Malcolm Edis. Whilst relying on the extent of Employment Tribunal time required to deal with his claims was a convenient argument for HMRC, omitting his protected disclosure claims would not provide justice for him when he had put his case in his revised documentation, to the extent that it was understandable by lay persons and must be understandable to HMRC. He was prepared to provide a simplified case for 2400171/19 to be heard together with 248488/15 and 2404018/17. Whilst accepting that a long delay had occurred, he contended this had hurt him more than HMRC and had been caused by HMRC and not himself such that it would be counter-productive to the overriding objective to strike out his protected disclosure claims.

[15]The Law15.1 The various statutory provisions the Tribunal was referred to and applied are as follows. In particular, Parts IVA, V and X of the Employment Rights Act 1996 make provisions in relation to Protected Disclosures, and establish important employment protection rights for “whistleblowers” against unfair dismissal for employees and against being subjected to detriment in employment for extended categories of workers, as well as the ordinary right not to be unfairly dismissed for employees. The protection from suffering detriment in employment includes protection against post-employment acts of detriment.

15.2 Protected Disclosures, Part IVA Section 43A In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H. Section 43B

(1) In this Part a “qualifying disclosure ” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following— (a)that a criminal offence has been committed, is being committed or is likely to be committed, (b)that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject, (c)that a miscarriage of justice has occurred, is occurring or is likely to occur, (d)that the health or safety of any individual has been, is being or is likely to be endangered, (e)that the environment has been, is being or is likely to be damaged, or (f)that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed. Section 43C (1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure ... (a)to his employer… , or (b)where the worker reasonably believes that the relevant failure relates solely or mainly to— (i)the conduct of a person other than his employer, or (ii)any other matter for which a person other than his employer has legal responsibility, to that other person…

15.3 Protection from Suffering Detriment in Employment, Part V Section 47B (1)A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. (1A)A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done— (a)by another worker of W's employer in the course of that other worker's employment, or (b)by an agent of W's employer with the employer's authority, on the ground that W has made a protected disclosure. (1B)Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker's employer. (1C)For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker's employer…

(2) . . This section does not apply where— (a)the worker is an employee, and (b)the detriment in question amounts to dismissal (within the meaning of Part X).

(3) For the purposes of this section, and of sections 48 and 49 so far as relating to this section, “worker”, “worker’s contract”, “employment” and “employer” have the extended meaning given by section 43K.

15.4 Unfair Dismissal, Part X (1) An employee has the right not to be unfairly dismissed by his employer… (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a)the reason (or, if more than one, the principal reason) for the dismissal, and (b)that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) A reason falls within this subsection if it— (a)relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b)relates to the conduct of the employee, (c)is that the employee was redundant, or (d)is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. Section 103A An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.

15.5 Interpretation, Part XIV (1)In this Act “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment. (2)In this Act “contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing. (3)In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)— (a) a contract of employment, or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual; and any reference to a worker’s contract shall be construed accordingly. (4)In this Act “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed. (5)In this Act “employment”— (a)in relation to an employee, means (except for the purposes of section 171) employment under a contract of employment, and (b)in relation to a worker, means employment under his contract; and “employed” shall be construed accordingly. (6) This section has effect subject to sections 43K,47B(3) and 49B(10); and for the purposes of Part XIII so far as relating to Part IVA or section 47B, “ worker ”, “ worker’s contract ” and, in relation to a worker, “ employer ”, “ employment ” and “ employed ” have the extended meaning given by section 43K... Also in Part IVA, Section 43K (1) For the purposes of this Part “worker” includes an individual who is not a worker as defined by section 230(3) but who— (a)works or worked for a person in circumstances in which— (i)he is or was introduced or supplied to do that work by a third person, and (ii)the terms on which he is or was engaged to do the work are or were in practice substantially determined not by him but by the person for whom he works or worked, by the third person or by both of them, (b)contracts or contracted with a person, for the purposes of that person’s business, for the execution of work to be done in a place not under the control or management of that person and would fall within section 230(3)(b) if for “personally” in that provision there were substituted “(whether personally or otherwise)”.

15.6 Particular Types of Employment, Part XIII (1) Subject to sections 192 and 193, the provisions of this Act to which this section applies have effect in relation to Crown employment and persons in Crown employment as they have effect in relation to other employment and other employees or workers. (2) This section applies to— …(b) Part V, apart from section 45, …(e) Part X, apart from section 101, and (f)this Part and Parts XIV and XV. (3) In this Act “Crown employment” means employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by a statutory provision.

(4) For the purposes of the application of provisions of this Act in relation to Crown employment in accordance with subsection (1)— (a)references to an employee or a worker shall be construed as references to a person in Crown employment, (b)references to a contract of employment, or a worker’s contract, shall be construed as references to the terms of employment of a person in Crown employment, (c)references to dismissal, or to the termination of a worker’s contract, shall be construed as references to the termination of Crown employment, (d)references to redundancy shall be construed as references to the existence of such circumstances as are treated, in accordance with any arrangements falling within section 177(3) for the time being in force, as equivalent to redundancy in relation to Crown employment, …

15.7 Time provisions Part V, Section 48 (1A) A worker may present a complaint to an employment tribunal that he has been subjected to a detriment in contravention of section 47B. (3) An employment tribunal shall not consider a complaint under this section unless it is presented— (a) before the end of the period of three months beginning with the date of the act or failure to act to which the complaint relates or, where that act or failure is part of a series of similar acts or failures, the last of them, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months. (4) For the purposes of subsection (3)— (a) where an act extends over a period, the “date of the act” means the last day of that period, and (b) a deliberate failure to act shall be treated as done when it was decided on;. and, in the absence of evidence establishing the contrary, an employer, a temporary work agency or a hirer shall be taken to decide on a failure to act when he does an act inconsistent with doing the failed act or, if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the failed act if it was to be done. Part X, Section 111 (1) A complaint may be presented to an employment tribunal against an employer by any person that he was unfairly dismissed by the employer. (2) Subject to the following provisions of this section, an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal— (a) before the end of the period of three months beginning with the effective date of termination, or (b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.

15.8 Constitutional Reform and Governance Act 2010 (1) The Minister for the Civil Service has the power to manage the civil service (excluding the diplomatic service)… (3) The powers in subsections (1) and (2) include (among other things) power to make appointments…

(5) The agreement of the Minister for the Civil Service is required for any exercise of the power in subsection (2) in relation to— (a)remuneration of civil servants (including compensation payable on leaving the civil service), or (b)the conditions on which a civil servant may retire… Civil Service (Management Functions) Act 1992 (1) This section applies to the functions conferred on the Minister for the Civil Service by section 3 of the Constitutional Reform and Governance Act 2010 (management of the civil service, excluding the diplomatic service). (2) The Minister for the Civil Service may, to such extent and subject to such conditions as the Minister thinks fit, delegate a function to which this section applies to any other servant of the Crown. Crown Proceedings Act 1947 (1) The Minister for the Civil Service shall publish a list specifying the several Government departments which are authorised departments for the purposes of this Act, and the name and address for service of the person who is, or is acting for the purposes of this Act as, the solicitor for each such department, and may from time to time amend or vary the said list… (3 ) Civil proceedings against the Crown shall be instituted against the appropriate authorised Government department, or, if none of the authorised Government departments is appropriate or the person instituting the proceedings has any reasonable doubt whether any and if so which of those departments is appropriate, against the Attorney General.

15.9 The Employment Tribunals Rules of Procedure 2013 Rule 2: 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; (c)avoiding unnecessary formality and seeking flexibility in the proceedings; (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. Rule 37: (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) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out). (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing… Approach to Rule 37: Whilst there is much case law on the individual provisions, the clear import of the authorities is that Rule 37 gives the Tribunal draconian powers which are exercised infrequently and only after careful consideration in clear cases, having taken the party’s case at its highest at this interlocutory stage prior to full disclosure of documentary evidence having taken place; striking out orders are unlikely to be made where there are matters of fact to be determined on oral evidence. The Tribunal seeks where possible to determine claims fully after hearing oral evidence and submissions. In respect of Rule 37(1)(c), the Tribunal followed the Court of Appeal guidance in, and the EAT guidance in Bolch v Chipman, Blockbuster v James and Force One Utilities Ltd v Hatfield

[2009] IRLR 45

. As well as determining first whether the claimant had not complied with an order, it expressly considered whether a fair hearing was still possible and whether a less onerous sanction than striking out would suffice. Rules 38 and 39 make provision for Unless Orders and Deposit Orders respectively and Rule 34 deals with addition, substitution and removal of parties..

15.10 Caselaw cited Blackbay Ventures Ltd t/a Chemistree v Gahir

2014 IRLR 416

Divine-Bortey v London Borough of Brent

1998 ICR 886

Blockbuster Entertainment Ltd v James

[2006] EWCA Civ 684

;

[2006] IRLR 630

Bolch v Chipman

[2004] IRLR 140

Harries v Academies Enterprise Trust & others

UKEAT/0097/14/KN

Secretary of State for Justice v Betts

UKEAT/0284/16/DA

Arthur v London Eastern Railway Ltd

2007 IRLR 58

Day v Health Education England

2017 IRLR 623

Gilham v Ministry of Justice CA

2018 IRLR 315

(but note this decision has since been overturned on appeal by the Supreme Court). Hammond v Haigh Castle & Co Ltd

1973 ICR 148

McTigue v University Hospital Bristol NHS Foundation Trust 2016 742 London Borough of Harrow v Knight

2003 IRLR 140

The Tribunal was particularly assisted by the observations of the Employment Appeal Tribunal giving guidance to first instance tribunals on protected interest detriment cases in Blackbay Ventures v Gafir, at paragraph 98: 1) Each disclosure should be identified by reference to date and content; 2) The alleged failure or likely failure…should be identified; 3) The basis upon which the disclosure said to be qualifying should be addressed; 4) Each failure or likely failure should be separately identified; 5) Save in obvious cases if the breach of a legal obligation is asserted, the source of the obligation should be identified and capable of verification by reference for example to statute or regulation…; 6) The employment tribunal should then determine whether or not the claimant had the reasonable belief referred to in section 43B(1)(b) and… 7) Where it is alleged that the claimant has suffered a detriment short of dismissal it is necessary to identify the detriment in question and where relevant the date of the act or deliberate failure to act relied upon by the claimant. This is particularly important in the case of deliberate failures to act because, unless the date of a deliberate failure to act can be ascertained by direct evidence the failure of the respondent to act is deemed to take place when the period expired within which he might reasonably have been expected to do the failed act. 8) The employment tribunal should then determine … whether the disclosure was made in the public interest.

[16]Conclusions16.1 At times, the Tribunal has found its task in case managing the proceedings and in determining the respondent’s applications at this Preliminary Hearing daunting because of the scale and apparent complexity involved. It is clear that the claimant has himself faced difficulties as a litigant in person with a disability in his attempts to comply with the Case Management Orders made, although he has very often concentrated on process and procedure to such an extent that he has not furthered his own cause; he has been so involved in his case that he has lost focus on the legal issues which the Tribunal has to decide upon and writes at huge length but in a way which often merely updates and increases the volume of his written output without adding clarity.

16.2 All the respondents have expressed a dissatisfaction with the claimant’s approach, partly prompting their applications to strike out his claims, but they too have not always fully engaged with the way he has put his claims against them, as for instance in terms of his 2019 claim case against respondents as agents of HMRC or HMRC’s counsel in the 2015 claim overlooking the claimant’s earlier disclosure of an actual email to Jenny Grainger.

16.3 The Tribunal has therefore stood back to assess these two claims in context as set out at the start of this Judgment, looking to concentrate on what the claimant is claiming and how he has explained that formally in Further Information in the 2015 claim and less formally through written and oral representations in both claims. It is convenient and logical to deal with the 2015 claim first. 17 2015 claim

17.1 The claimant was employed, albeit in Crown employment, by HMRC and thus has an entirely arguable ordinary unfair dismissal claim arising from his dismissal. In an “automatically” unfair dismissal claim where the claimant (who has sufficient service for ordinary unfair dismissal) claims an inadmissible reason was the principal reason for dismissal, the respondent will fail to prove its potentially fair reason or principal reason for dismissal if the Tribunal concludes that the reason or principal reason i.e. the “real reason” underpinning the decision to dismiss was the inadmissible reason. Accordingly, it is necessary to consider whether the claimant can point to protected qualifying disclosures which he asserts were the real reason for his dismissal. If there were any such protected qualifying disclosures, the automatic unfair dismissal claim should proceed to hearing notwithstanding the claimant’s difficulty in establishing any separate unlawful acts of detriment not forming part of the dismissal. Whilst the claimant still has to prove that he made protected qualifying disclosures, taking his case at its highest at this stage, the Tribunal should be well able to decide upon the reason, or principal reason, for his dismissal.

17.2 Notwithstanding HMRC’s strong submissions that the 5 disclosures, in the version at [321/2015], cannot amount to protected qualifying disclosures or are still insufficiently identified by the claimant, taking those disclosures at [321/2015] alongside the “applicable ERA section” listed in the 23 September 2019 version [366G/2015], it is clear he alleges them all to disclose miscarriage of justice, Section 43B(1)(c), with the 3rd and 4th also disclosing deliberate concealment, Section 43B(1)(f). All 5 alleged disclosures were to HMRC personnel and thus potentially within the Section 43C(1)(a) qualification. Although HMRC was correct that the claimant had failed to comply fully with the Case Management Orders in respect of Section 43B(1) previously, he finally did list the type of disclosure within section 43B(1) on 23 September 2019 almost at the last possible moment before the Preliminary Hearing; in the circumstances, the Tribunal considers that it would not be appropriate to strike out the automatic unfair dismissal claim on the basis that the claimant simply cannot establish he made any protected qualifying disclosures. The Tribunal does not permit the claimant to rely also upon another disclosure, simply added by him into his most recent version on 23 September 2019 [366G/2015] as part of some “slightly revised short case disclosures” as the first disclosure listed; whilst identifying HMRC managers at various levels, there is insufficient clarity about the date and form of this disclosure shown as both “January 2010 onwards” and “Formalised in written disclosure made in 2011” and the claimant cannot once again change his stance upon the disclosures he wants to rely upon.

17.3 To the extent that HMRC contends the first to the fourth disclosures listed on [321/2015] are still not sufficiently clearly identified, that can be remedied by requiring the claimant to provide his witness statement of primary evidence dealing with making his disclosures first, before service or exchange of other statements from any supporting witnesses of the claimant and the respondent’s witnesses, and once the ordinary procedure of disclosure of documents has been completed. The claimant has provided a copy of the fifth disclosure (an email to Jenny Grainger, [196-201/2015] as an attachment to his email dated 19 October 2018), and thus the content of that letter is very clearly evidenced. At this stage, the Tribunal is determining no more than that the claimant can proceed with his automatic unfair dismissal claim alongside his ordinary unfair dismissal claim. If he fails to prove that any of the 5 disclosures at [321/2015] amounts to a protected qualifying disclosure, then the Tribunal at the final hearing will be able to determine only his ordinary unfair dismissal claim.

17.4 The Tribunal takes the opposite view in respect of the disclosure detriment claims. Section 47B(2) provides that separate detriment claims do not gain Section 47B protection where the detriment in question amounts to a dismissal. Having considered the claimant’s case carefully in its different formulations, the essence of his case is that his eventual dismissal shortly after his fifth disclosure to Jenny Grainger was indeed caused by him making persistent protected qualifying disclosures: he was dismissed because he was a whistleblower. This is to be dealt with as part of his Section 103A “automatic” unfair dismissal claim. However, as acts of separate detriment, both in terms of the date of the detriment finishing which he always describes as “ongoing” and the overall act of detriment and type of failure by HMRC alleged, labelled as “failure to follow own processes” or policy, “failure to investigate”, “failure to follow medical recommendations” and alleging “breach of trust and confidence”, “breach of employment terms”, “breach of duty of care”, “(breach of) PIDA protections”, his failure to comply with the Tribunal’s Case Management Orders requiring further specification is fundamental. The acts of detriment the claimant seeks to put forward are much too broad and indistinct for the Tribunal to determine upon meaningfully. It is not sufficient for him to assert repeatedly that the failure to investigate properly or to uphold his grievance or accept the validity of his complaints, leading to the breakdown of his health, is itself an act of detriment. As to timing, even though the claimant in his short case formulation says he accepts that the Tribunal can only consider the detriments post-presentation of the 2013 claim, the reality is that he is alleging many broad and vague detriments which clearly began before the 2013 claim was presented and were or could have been included within that claim. As HMRC correctly contends, the time provisions in detriment claims based upon a failure to act, at Section 48(3) and (4) mean that the time limit runs from when a deliberate failure to act is decided upon (as established by the employer doing an act inconsistent with the failed act or within which it might reasonably have been expected to act). As the claimant has identified 22 (reduced to 18) acts of detriment, the time limit applies to each act individually although it is the case that where one act extends over a period, time only starts to run at the end of that period. Accordingly, insofar as the detriment claims under Part V are concerned, the Tribunal strikes all of those out as having no reasonable prospect of success. 18 2019 claim

18.1 The protection under Part V is protection from suffering detriment in employment, which includes in Section 47B, in respect of protected disclosures, protection against or remedies for being subjected to post-employment acts of detriment (as well as acts of detriment during the actual employment) carried out by the employer and the employer’s own employees in the course of their employment and the employer’s agents acting with the employer’s authority. Taking the claimant’s case at its highest at this stage, it appears that detriment could include acting adversely to the claimant’s interests or failing to act in respect of his rights as a member of the pension and benefit scheme, which are collateral benefits of his employment.

18.2 Although the claimant was dissatisfied that he had sought disclosure of the relationships between the various different respondents which had not been provided to him at this stage, the Tribunal considered these were sufficiently clearly set out in the respective responses and documents to make its decisions upon the applications. HMRC, the first respondent, was the claimant’s employer and remains in the proceedings. No other respondent was the claimant’s employer and in fairness to him, despite extensive representations from respondents for instance as to the extended meaning on worker within section 43K of the 1996 Act, he has never claimed to be so. He has however relied upon the corporate nature or identity of the Civil Service employer as entitling him to claim against each of the respondents and, by the time of this Preliminary Hearing very much more clearly than when he commenced these proceedings (which was before the Judgment in Case No 2413478/2018 was delivered and sent out), he relied firmly upon the involvement of the 2nd to 5th respondents as being agents of his employer, HMRC, within the definition at Section 47B(1A)(b) of an agent of employer acting with the employer’s authority.

18.3 The claimant accepts and relies upon the relationship whereby the Cabinet Office manages the pension and benefits scheme for all government department employers, with MyCSP being the scheme administrator and HML the health adviser. In fact, although it is common ground that the Cabinet Office is the manager of the scheme, there is little documentation explaining its role and its relationship with HMRC as another government department the employees of which are members of the schme. Nonetheless, the Tribunal considers it a massive leap to make My CSP and HML the authorised agents of HMRC in employment or post-employment detriment terms, even on the claimant’s case of them subjecting him to unlawful detriment in acting or failing to act upon his CSIBS claim. Ultimately, it appears to the Tribunal that MyCSP and HML are doing no more than providing services to the Cabinet Office which contracts with them respectively to administer and act as medical adviser to the pension and benefit scheme run for all civil service employees. MyCSP and HML did not become the agents of HMRC just because they were providing services which HMRC were the ultimate end-user of or an indirect recipient of on behalf of its employee who was a member of the scheme. Even if the claimant’s argument that there does not need to be a direct contractual relationship between the employer and the agent is correct, there certainly needs to be very much more direct link or fiduciary relationship between the service provider, MyCSP or HML, and the end-user than is evidently the case here. If anything, since there is a specific contracting body which MyCSP operates under and HML advises, the Cabinet Office, it is still less feasible that they are HMRC’s agents acting with HMRC’s authority.

18.4 Considering the point another way, HMRC is not expressly or impliedly holding MyCSP or HML out as specifically acting on its behalf so as to affect legal relations with third parties, they are just providing services that its employees get the benefit or use of as members of the civil service pension scheme. In terms of the role of HML, this respondent has the strongest argument in seeking to be dismissed from the proceedings, since it was the successor scheme medical adviser operating at very considerable distance from HMRC. Moreover, even without hearing oral evidence, the argument that the claim was out of time and that it would have been reasonably practicable to present it in time (not least since time limits were discussed at a Case Management Preliminary Hearing in Case No 2423478/2018 on 13 November 2018) is accepted. The claims against both MyCSP and HML are struck out as having no reasonable prospect of success.

18.5 Whilst the Minister has a statutory responsibility to manage the Civil Service, it is common ground that he delegates this to the Cabinet Office, as he is entitled to do under Section 1(2) the Civil Service (Management Functions) Act 1992. Although the Tribunal has seen no current list of authorised departments for service of proceedings on as prescribed by the Crown Proceedings Act 1947, it is understood that the Minister (i.e. the Prime Minister) is not on the list upon which or whom service of proceedings can be validly effected, whereas HMRC and Cabinet Office are certainly listed. The claimant himself acknowledged that the removal of the Minister as a named respondent to the proceedings does not detract from his claims and it is appropriate to strike him out as a named respondent on the basis that claims against him stand no reasonable prospect of success (or alternatively to remove him from the proceedings under Rule 34 as a party apparently wrongly included).

18.6 That leaves consideration of the position of the Cabinet Office, the Government Department with responsibility to manage the pension and benefits scheme which employees of the various government departments belong to and benefit from. There is plainly significant inter-relationship between the Cabinet Office and government departments such as HMRC, such that HMRC is one of the employing departments which gains the benefit of the Cabinet Office’s management of the pension and benefits scheme, even though it has legal responsibility for Crown employees employed by it. Regrettably, the Cabinet Office’s ET3 and skeleton argument have been substantially lacking in detail about its role in managing the scheme and how it liaises with the HMRC and other employer departments in respect of it. The response and submissions concentrated entirely upon whether the claimant was an employee or worker, albeit also relying upon Employment Judge Ross’s Judgment in in Case No 2423478/18 (which in turn cited from that of Employment Judge Ryan in Case No 2404018/17). Whilst the Tribunal regards other first instance decisions as being of persuasive authority and would generally not wish to deviate from them as a matter of comity, it considers that the claimant’s arguments as to agency of the Cabinet Office as acting for HMRC are now much more fully developed. Although the argument that the Cabinet Office is HMRC’s agent in managing the pension scheme and thus can be liable under Section 47B(1A)(b) is not supported by evidence from the claimant, he is right to stress that no disclosure of documents has yet been made (other than voluntarily within the Bundle) at the stage of this Preliminary Hearing. Conversely, it appears to the Tribunal that the Cabinet Office’s case is based firmly upon its assertion as to its status and the general and extended definitions of worker rather than upon evidence and ignores its role as manager of the pension scheme. The Tribunal therefore concludes that it would be premature to dismiss the Cabinet Office as a respondent to this claim alongside HMRC or to deal conclusively with its arguments of absence of any duty to act in relation to the claimant, which will be considered fully at a later hearing.

[19]Deposit applications Whilst both HMRC and the Cabinet Office raised applications for deposits to be made against the claimant if the claims proceeded, on the basis of the claims against them having little reasonable prospect of success, the Judge concluded that this was not an appropriate case for deposit orders. The differentiation between no and little reasonable prospect of success is always fine but the unfortunate history of the 2015 claim and the multiplicity of claims here, taken with the claimant’s new preparedness to reduce his claims to “short case” formulation, means that further case management to bring them to hearing should be engaged with as soon as possible.

[20]Case management of other claims In respect of other case management, the Judge canvassed views about lifting the stay in and combining the 2017 claim with any other claims going forward. Both the claimant and HMRC agreed the stay should be lifted in the 2017 claim, which also concerns Health Assured Ltd. However, HMRC noted that progress in the 2017 and 2019 proceedings was behind the 2015 claim in terms of clarity of protected disclosures and acts of detriment alleged. The claimant expressly made clear that he proposed to shorten the 2017 and 2019 claims as he had done with the 2015 claim. The way forward is to list a further case management hearing on the 2015 claim together with the 2017 and 2019 claims, insofar as all claims are continuing. Case Number: 2408488/15 (presented 30 October 2015) & 2400171/19 2408488/15 (presented on 30 October 2015): Claimant: Mr D P Hoppe Respondent: H M Revenue and Customs 2400171/19: Claimant: Mr D P Hoppe Respondents: 1) H M Revenue and Customs 2) MyCSP 3) Health Management Ltd 4) Cabinet Office 5) Minister for Civil Service

[1]The code “V” in the heading indicates that this was a hearing conducted by video conference (CVP). The claimant participated by dialling in by telephone to the hearing, rather than joining by visual and audio connection. For most of the hearing, the telephone link was directly into the CVP conference. For a short period, the claimant called on a separate telephone link but I had difficulty hearing him and the other participants in the CVP hearing could not hear him. The claimant later rejoined the hearing by dialling in to the CVP room.

[2]At a private preliminary hearing, the record of which was sent to the parties on 2 December 2020, Employment Judge Holmes set out ground rules for the conduct of claims, including the two cases which are the subject of this hearing, up to and including the preliminary hearings on 2 and 3 February 2021. These ground rules included that the Tribunal should provide the claimant with reasons (which the judge took to be written reasons) for any decisions it made or directions it gave and that all hearings would be officially recorded by the Tribunal. In accordance with these ground rules, I recorded this preliminary hearing on a Dictaphone. Written reasons for the rulings I made on 2 February 2021 are contained within these reasons.

[3]I am aware that the claimant has requested a transcript of the second day of this hearing i.e. 3 February 2021. At the time of making this decision and writing these reasons, I have not seen this transcript. I rely, as is normal practice, on my note of the hearing in addition to the written witness statements, documentary evidence and, in this case, extensive written submissions in making my decision.

[4]In these reasons, “the 2017 case” refers to case number 2404018/2017 and “the 2019 case” refers to case number 2400171/2019. At the time of this hearing, the respondents to the 2017 case are Health Assured Limited and HM Revenue and Customs (HMRC), and the respondents to the 2019 case are the Cabinet Office and HM Revenue and Customs (proceedings against other respondents having been struck out). The issues to be determined at this preliminary hearing only actively concern the Cabinet Office and Health Assured Limited (Health Assured). Background to this hearing

[5]The issues which are the subject of this preliminary hearing arise in the context of complex litigation which was summarised by Regional Employment Judge Parkin in his judgment and reasons sent to the parties on 3 January 2020.

[6]The claimant was employed by HMRC. He was dismissed in 2015. He contends this was because he had made protected disclosures. The claimant brought proceedings against HMRC but also proceedings against central Civil Service departments, officers, pension administrators and health providers for detriments subsequent to his dismissal, including the Cabinet Office and Health Assured.

[7]Health Assured is a respondent to the 2017 claim. The complaints against Health Assured are of detrimental treatment on the ground of making protected disclosures. REJ Parkin summarised the part of the 2017 claim involving Health Assured as follows, at paragraph 5.2 of his reasons: “He [the claimant] maintained that, at the point of dismissal, he should have been advised of and invited to make a claim under the Civil Service Injury Benefit Scheme, with a view to compensation for ill-health arising directly from the toxic working environment and detriments. HMRC failed to initiate such an invitation and then eventually when Health Assured Ltd conducted an assessment it failed to act independently and review its assessment in time.”

[8]The Cabinet Office is a respondent to the 2019 claim. The complaint against the Cabinet Office is of detrimental treatment on the ground of making protected disclosures. The claim relates to alleged failures to act by the Cabinet Office in relation to the claimant’s claim for a permanent award under the Civil Service Injury Benefit Scheme (CSIBS). The allegation of detrimental treatment was summarised in the annex to case management orders sent to the parties on 1 September 2020 as follows: “A failure to take action about the matters raised in the Claimant’s letter of 22 November 2018 until 14 December 2018”.

[9]The basis of liability on the part of Health Assured and the Cabinet Office is said by the claimant to be that they were acting as agents for the claimant’s employer, HMRC, when subjecting him to detrimental treatment within the meaning in section 47(1A)(b) Employment Rights Act 1996 (ERA). Issues for this hearing

[10]This public preliminary hearing was listed to consider the following matters which were set out by Regional Employment Judge Franey at a private preliminary hearing on 15 July 2020: 10.1. “On Tuesday 2 February 2021, in the 2019 case, whether any act or deliberate failure to act on the part of the Cabinet Office which the claimant alleges caused him a detriment was done by the Cabinet Office as an agent of HMRC with the authority of HMRC so as to make the Cabinet Office potentially liable under section 47B(1A)(b) Employment Rights Act 1996. 10.2. On Wednesday 3 February 2021, in the 2017 case, whether any act or deliberate failure to act on the part of Health Assured which the claimant alleges caused him a detriment was done by Health Assured as an agent of HMRC with the authority of HMRC so as to make Health Assured potentially liable under section 47B(1A)(b) Employment Rights Act 1996. 10.3. Any other matters of case management which may arise, including clarification of the complaints and issues for determination at the final hearing, and provision of a cast list, chronology and timetable for the final hearing.”

[11]Orders made on paper by REJ Franey and sent to the parties on 14 January 2021 summarised, at paragraph 25, the issues to be determined at this hearing as follows: “(a) Firstly, whether the Cabinet Office acted as agent of HMRC in failing to take action about the matters raised in the claimant’s letter of 22 November 2018 until 14 December 2018. That letter concerned an alleged failure by Health Management Limited, the successor to Health Assured as Scheme Medical Adviser, to produce an independent assessment of impairment in accordance with CSIBS rules, and a failure by MyCSP to investigate that matter. “

(b) Secondly, whether Health Assured acted as agent for HMRC, either directly or through the Cabinet Office (if the Cabinet Office was an agent of HMRC) in failing to complete a review assessment required under CSIBS by 30 June 2017.”

[12]The outcome of this hearing will determine whether Health Assured remains as a respondent to the 2017 claim and whether the Cabinet Office remains as a respondent to the 2019 claim.

[13]It is not for me to decide at this hearing whether they subjected the claimant to detrimental treatment and, if so, whether this was on the grounds the claimant made protected disclosures. It is assumed for the purposes of this hearing that the claimant will prove at the final hearing that he made the alleged protected disclosures and that the Cabinet Office and Health Assured Limited were responsible for any act or deliberate failure to act which cause the alleged detriment. I am looking only at whether, if they did what is alleged, they were acting as agents of the claimant’s former employer, HMRC and, therefore, could be liable to the claimant for a claim brought under section 48 ERA for a contravention of section 47B ERA. If I conclude that Health Assured and/or the Cabinet Office were acting as agents in the sense used in section 47B(1A)(b) ERA, they will remain as a respondent and all other issues relevant to liability will be decided at the final hearing. The first day of this hearing

[14]I had an initial discussion with the parties to confirm the issues I was to deal with and the evidence I was to consider. During the discussion, the claimant told me he had not received a letter which I had believed to have been sent to the parties on the orders of REJ Franey on 29 January 2021. I also discovered that the claimant and Mr Redpath had not received a copy of the bundle of documents prepared by Health Assured Limited. Mr Mati said he had emailed this to the claimant on 20 January 2021 but the claimant could not find that email. At 10.50 a.m. the claimant said he could do with a break. I asked him to rejoin at 11 a.m. but was not sure whether he had left the hearing before I said that. On my instructions, at 11 a.m., my clerk rang the claimant to see if he was ready to rejoin the hearing. He said he needed more time, so I asked my clerk to ask him to rejoin at 11.30 a.m. and to say that, when he did, we would talk about what we were going to do.

[15]The claimant sent an email at 11.40 a.m. saying he had tried to dial in again but the number would not connect. He sent a further email at 11.55. He wrote in this: “an expectation for today was “that ahead of the hearing a response would have been provided to the request for review and clarification. “that the hearing would be held by Judge Franey as he had determined the evidence he thought was required to determine matters in accord with the indications given previously that sight of documents and arguments would be provided in accord with the ground rules that there would be an indication given of the process to be followed if appears such were not to be met.”

[16]He also wrote that his mind was fogged and he felt very threatened and “I feel that Tribunal is acting in a manner complicit with respondents to rush crush and coinceal. I have no idea what can realistically be achieved today but ther will be nothing achievced by not recognising the inadequacy of the matter being progressed.”

[17]The claimant rejoined the hearing after this. He said he did not feel appropriately equipped to engage. He said he could listen but was not in a fit state to respond appropriately. He did not feel able or willing to continue with the Cabinet Office case and was not able to make another witness statement until disclosure. He referred to having insufficient time. I had considerable difficulty hearing the claimant and the other parties were unable to hear him, but the claimant confirmed to me that he wanted to apply for a postponement of both cases and I relayed what he said to the other parties. I said I would adjourn until 2 p.m. when I would hear his application to postpone. My clerk then called the claimant, on my instructions, to work out the best way to proceed so that all parties could hear him.

[18]We resumed at 2 p.m. and the claimant participated by telephone link into the CVP conference. I and the other parties were able to hear him.

[19]At 1.12 pm, the claimant had sent a further email which I read before resuming. Mr Redpath and Mr Mati confirmed that they had read the email.

[20]At 2 p.m. I set out what I considered to be the available options: 20.1. Postpone the whole preliminary hearing and re-list it. 20.2. Postpone the preliminary hearing and deal with the issues at the final hearing. 20.3. Postpone the Health Assured case but go ahead with the Cabinet Office case. 20.4. Go ahead with both cases.

[21]I then heard submissions from the claimant, Mr Redpath and Mr Mati as to what we should do. Mr Hurd made a brief submission on behalf of HMRC in relation to the option to deal with the issues at the final hearing.

[22]After an adjournment, I gave my decision and reasons for deciding to proceed and how we would proceed as set out below. Decision to proceed and reasons for that decision

[23]My decision is to proceed on 3 February 2021 with hearing evidence on both cases, but the parties’ arguments, or submissions, will be made in writing In accordance with a timetable I will decide after discussion with the parties.

[24]My reasons for this decision are as follows.

[25]The claimant’s arguments as to why I should not go ahead with this hearing relate largely to his argument that this cannot be done fairly without the Tribunal ordering further evidence to be disclosed. The matter of disclosure has been dealt with by REJ Franey in his written orders sent to the parties on 14 January 2021. REJ Franey considered further representations made by the claimant and refused the claimant’s request for “review and clarification” of his order. I regret that, apparently due to an administrative oversight, REJ Franey’s decision on this was not sent to the parties, as the REJ had instructed, on 29 January 2021. The matter of disclosure is, however, at an end, subject to any appeal which the claimant may make. It would not be appropriate to delay this hearing on the basis of an appeal which has not even yet been presented.

[26]The claimant’s other arguments relate to being prepared for the hearing. In relation to the Cabinet Office case, the claimant received the bundle of documents for the hearing in good time, in accordance with the orders made. The claimant says he was not aware of there being any opportunity or likelihood of evidence in the hearing and has prepared no questions. The claimant should have been aware of the likelihood of evidence being called from the orders made for sending of witness statements. Mr Spain’s witness statement was sent to him in advance. The claimant had the opportunity to prepare questions for Mr Spain and, since I have decided that evidence will not be heard until tomorrow, he will have a further opportunity to prepare any questions if he wishes to do so.

[27]In relation to the Health Assured case, it appears that the claimant did not receive the bundle of documents on 20 January, although I accept Mr Mati sent it and had no reason to believe it had not been received. However, the bundle does not contain any documents that were not previously disclosed, on 20 January or the preceding September. The claimant should, therefore, be familiar with the documents. In any event, Health Assured is not calling any witnesses, so no issue arises as to whether the claimant could be expected to be prepared to cross examine witnesses for Health Assured.

[28]I consider the interests of justice lie in this hearing going ahead if this can be done in a fair way. All the parties have waited a very considerable time to get to this stage and further delay is not desirable. There are good reasons for these issues being dealt with at a preliminary stage. They have the potential to remove one or two respondents from the case.

[29]I consider that the hearing can go ahead in a fair way, having regard to the ground rules agreed for this hearing, as follows. We will adjourn until tomorrow. The claimant will give his evidence first and be questioned by both respondents. Mr Spain will then give evidence on behalf of the Cabinet Office and the claimant will have an opportunity to question him, if the claimant wishes to do so. I will not hear oral submissions. The parties will provide written submissions by dates to be decided, after discussion about this with the parties. This will give the claimant an opportunity to have sufficient time to digest and respond to the respondents’ arguments. I will then decide the case, on the basis of the evidence I heard, the documentation in the two bundles, and the parties’ written submissions and provide my judgment and reasons in writing. The Timetable for the hearing and written submissions

[30]After giving my decision, I outlined the order of evidence and questions. We agreed the timetable for written submissions. The claimant commented that he was grateful for the clarity that I was bringing to proceedings. We then adjourned until the following day.

[31]On 3 February 2021, we proceeded in the way I had decided. Written submissions have been provided subsequently in accordance with the agreed timetable. Contrary to the suggestion in the claimant’s submissions, and information the claimant says he was given by someone at the Tribunal, Health Assured’s submissions were received by the Tribunal on 25 February 2021, as required by the orders. Mr Mati’s email was also correctly addressed to the claimant’s email address. It appears that, for reasons so far unexplained, that email did not reach the claimant on that day. Further case management of the claims

[32]When giving my decision on 2 February 2021, I said I would arrange a preliminary hearing by telephone conference call to be conducted by REJ Franey, if possible, to consider any outstanding case management matters relating to the final hearing, including timetabling of the final hearing. At the end of the hearing on 3 February 2021, I confirmed the timetable for submissions and informed the parties I would be considering my decision in chambers on 1 April 2021. I told the parties that REJ Franey would arrange the next case management preliminary hearing. I advised the claimant that, if he wanted to appeal against REJ Franey’s case management orders relating to disclosure, he should not wait for my decision before doing so. I said that the written reasons for my decisions given on 2 February 2021 would be included in the written judgment and reasons for this preliminary hearing.

[33]The case management orders about written submissions were confirmed in writing and sent to the parties on 5 February 2021.

The Evidence

[34]I heard oral evidence from Mr Peter Spain, Head of the Civil Service Pensions Technical Team, for the Cabinet Office and from the claimant. There was no witness evidence for Health Assured. There was a written witness statement from Mr Spain. I had a written witness statement from the claimant dated 30 July 2020.

[35]There were two bundles of documents, one prepared by the Cabinet Office and one by Health Assured Limited. Any references to documents in the bundle prepared by the Cabinet Office will be referred to in these reasons as “CO[page number]” and references to documents in the bundle prepared by Health Assured Limited will be referred to as “HA[page number]”.

Facts

[36]The claimant was employed by HMRC until his employment was ended with effect from 11 June 2015.

[37]The CSIBS is a statutory scheme under section 1 of the Superannuation Act 1972. It offers certain benefits to persons serving in the Civil Service who have suffered qualifying injury or disease in the course of service which impairs earning capacity. The CSIBS is separate from the Civil Service’s pension arrangements. The rules relating to the CSIBS as they were at relevant times appear at CO200 onwards. Paragraph 1(ii) provides (CO201): “The benefits under this scheme will be paid at the discretion of the Minister and nothing in the scheme will extend or be construed to extend to give any person an absolute right to them.”

[38]Payments of benefits under the CSIBS are made from money provided centrally but the cost is then recharged to the relevant employer, so HMRC would be charged for any benefits paid under the scheme to the claimant.

[39]Section 1(1) confers power on the Minister for the Civil Service to make, maintain and administer schemes such as the CSIBS. Section 1(2) allows the Minister to delegate “to any other Minister or officer of the Crown any functions exercisable by him by virtue of this section or any scheme made thereunder.”

[40]The Minister for the Civil Service delegates management of the CSIBS to the Cabinet Office. The Cabinet Office, through its Pensions Policy, Strategy and Governance team, is the CSIBS Scheme Manager.

[41]The Cabinet Office has, since 2012, delegated the administration of the CSIBS to MyCSP Ltd. MyCSP Ltd administers the CSIBS in accordance with the Rules and guidance provided by the Cabinet Office.

[42]Mr Spain’s understanding is that MyCSP Ltd was at one stage a joint venture partly owned by government and it is now a private company. His understanding is that, at times relevant for this case, it was a private company, not part of the Civil Service. Mr Spain told me, after making enquiries, that the Cabinet Office initially had a 35% shareholding in the company. Some of this shareholding was sold in 2014 and the remainder was sold in 2018.

[43]The Scheme Medical Adviser carries out medical assessments to assess whether applicants meet the requirements for benefits to be paid under the CSIBS. Health Assured Limited became the Scheme Medical Adviser with effect from 1 August 2015. The Cabinet Office had appointed Capita Health and Wellbeing Limited as Scheme Medical Advisor (SMA) from 1 July 2013 under the terms of a Framework Agreement dated 10 July 2013 (the Framework Agreement). The Framework Agreement was novated to Health Assured Limited with effect from 1 August 2015. “The Authority” in the Framework Agreement is the Cabinet Office.

[44]Health Management Limited replaced Health Assured as SMA with effect from 1 July 2017.

[45]Paragraph 5.10.3 of the MyCSP employer pensions guide (CO232) states: “Normally the Scheme Administrator decides if a member has suffered an injury that may qualify them for an injury benefit. The Scheme Administrator may take the advice of the Scheme Medical Adviser but the Scheme Administrator always makes the decision as to whether the member has a qualifying injury.”

[46]A 2013 booklet “Injury Benefit Scheme – A Brief Guide” states: “MyCSP also processes injury benefit claims on behalf of your employer”.

[47]Under the terms of the Framework Agreement, “Employers”, defined as a body or organisation with employees who are active members of the Civil Service Pension arrangements, may place orders for the provision of services by the SMA (see paragraph 6.1 CO145).

[48]Schedule 1 of the Framework Agreement sets out the requirements for the supply of medical and associated administrative services to various schemes, including the CSIBS (CO173).

[49]Paragraph 3 of Schedule 1 provides: “The requirement is to provide medical advice and recommendations using professional skill and judgement concerning entitlement to scheme benefits in accordance with the relevant scheme rules by…” A list follows of various steps which must be taken, including examining Occupational Health case papers, other medical papers and other relevant documents and arranging any essential medical examinations.

[50]Schedule 2 to the Framework Agreement was redacted in the document disclosed to the claimant and does not appear in the bundles. Paragraph 15 (CO149) provides: “The prices offered by the Provider for Orders to Employers shall be the prices listed in Schedule 2 for the relevant service.”

[51]“The Provider” was Capita Health and Wellbeing Limited and, after the novation of the Framework Agreement, Health Assured Limited.

[52]“Order” is defined (CO139) as: “an order for Services served by any Employer on the Provider in accordance with the Ordering Procedures and which forms the legally binding agreement (made pursuant to the provisions of this Framework Agreement) for the provision of Services made between an Employer and the Provider.”

[53]“Services” are defined as “the medical advisory services detailed in Schedule 1” (CO141).

[54]Based on these provisions, I consider it likely that the material redacted in Schedule 2 would identify the prices for the services set out in Schedule 1, but would add little, if anything, to the description of the services set out in Schedule 1.

[55]In Schedule 1 (CO178), services in relation to injury benefits are described as follows: “17. The Provider shall provide advice so the Authority or the Other Employer can decide whether a person has suffered a qualifying injury as defined by CSIBS rule 1.3 or (if the injury occurred before 1 October 2002) former rule 11.3 of the PCSPS, and whether there is a causal link between a specified injury and the Scheme member’s official duty. “18. Where a scheme member becomes entitled to be considered for the payment of injury benefit the Provider will provide an assessment of the degree to which the qualifying injury has impaired earning capacity. Any assessment will be placed in one of the categories contained in CSIBS rule 1.7 (or former rule 11.7 of the PCSPS as the case may be). “19. In addition, where the injury was sustained on or after 1 April 2003, the Provider will advise whether the injury is “wholly” (more than 90%) or “mainly” (between 50% and 90%) attributable to the nature of the duty. Where the injury is mainly but not wholly attributable to the nature of the duty, the Provider will advise whether attribution is “low” (50-70%) or “medium” (71- 90%). “20. The Provider will give advice on appeals from an injury benefit beneficiary against a decision that there is no causal link between specified injury and the scheme member’s official duty, or against assessments of impairment of earning capacity and (where appropriate) apportionment, reviewing the medical evidence. “21. The Provider will give advice in accordance with CSIBS rule 1.10 (or former PCSPS rule 11.10 as the case may be) on the beneficiary’s request for a review of benefit following the deterioration of their condition (does not apply to injury sustained on or after 1 April 2003).”

[56]If an individual is dissatisfied with the decision about benefits under the CSIBS, there is a two stage Internal Dispute Resolution procedure which the individual can use (CO232). The first stage is for MyCSP to undertake an investigation and provide a determination. The second stage, if the individual is dissatisfied with the stage 1 decision, is for the Cabinet Office to investigate the dispute and provide a further determination.

[57]The claimant made a claim for benefits under the CSIBS. He made this application to HMRC after contacting MyCSP who told him that they could not accept a claim directly and that he had to make the claim to HMRC.

[58]The claimant believes that HMRC raised a purchase order for the cost of the use of Health Assured. The claimant says he requested a copy of documentation including the purchase order, but this has not been provided. Mr Spain’s understanding of the current process, based on information received from MyCSP, is that no purchase order is raised, but the SMA bills the employer on the completion of the work. The cost is charged to the employer but commencement of the work is not dependent on completion of a purchase order. Mr Spain had no knowledge of whether a purchase order had been used in the claimant’s case.

[59]The claimant’s understanding that HMRC requested services from Health Assured is supported by the reference in the “advice from medical assessment” to a request from the department, identified as HMRC (HA73).

[60]Mr Spain’s understanding is that the advice of the SMA is provided to MyCSP and MyCSP makes use of that advice to make decisions. This understanding is supported by the correspondence about the claim and appeal between MyCSP and Health Assured.

[61]On 3 November 2015, a medical adviser completed a form headed: “Advice from medical assessment on impairment of Earnings Capacity and Apportionment for Civil Service Injury Benefit” in relation to the claimant. The doctor wrote: “as requested by the department, I have considered the entire available medical and other documentary evidence submitted to the scheme medical adviser about the above.” The department is identified in the report as HMRC (HA73).

[62]The claimant had some correspondence with Health Assured, taking issue with the report, after receiving this in November 2015.

[63]The claimant sent a letter of appeal to MyCSP in September 2016. The claimant referred to the appeal to MyCSP in a letter to Health Assured dated 14 November 2016 (HA108). The claimant’s recollection in his submissions (paragraph 71) that the appeal had to be lodged via HMRC is not supported by the documentation.

[64]MyCSP Ltd wrote to Health Assured on 24 November 2016, writing that the claimant had appealed against Health Assured’s medical assessment of apportionment and/or impairment an enclosing an “Appeal against medical advice - injury benefit” for their consideration (HA110).

[65]On 14 February 2017, Health Assured wrote to MyCSP about the appeal. The doctor wrote, for reasons explained in the letter, that they were closing the file and returning it to MyCSP (HA121).

[66]On 3 May 2017, MyCSP returned the claimant’s file to Health Assured at their request (HA122).

[67]There was further correspondence from Health Assured to McCSP on 18 May 2017 (HA123).

[68]There was no correspondence between Health Assured and the Cabinet Office or HMRC about the appeal.

[69]The case was transferred to Health Management Limited with effect from 1 July 2017 when Health Management Limited became SMA in the place of Health Assured.

[70]On 22 November 2018, the claimant wrote to the Head of the Civil Service (CO132), enclosing a copy of his IDR2 Appeal application (CO189). This related to an alleged failure by Health Management Limited, the successor to Health Assured as Scheme Medical Adviser, to produce an independent assessment of impairment in accordance with CSIBS rules, and a failure by MyCSP to investigate that matter. The claimant’s allegation of detrimental treatment by the Cabinet Office is about the Cabinet Office failing to take action about the matters raised in that letter until 14 December 2018. Submissions

[71]The parties made written submissions. I do not seek to summarise these submissions which can be read in their entirety, if required. I do, however, seek to deal with the principal arguments made by the parties in my conclusions.

Law

[72]The relevant parts of section 47B Employment Rights Act 1996 for this case are as follows: “(1) A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. “(1A) A worker (“W”) has the right not to be subjected to any detriment by any act, or any deliberate failure to act, done –(a) by another worker of W’s employer in the course of that other worker’s employment, or

(b) by an agent of W’s employer with the employer’s authority, on the ground that W has made a protected disclosure. “(1B) Where a worker is subjected to detriment by anything done as mentioned in subsection (1A), that thing is treated as also done by the worker’s employer. “(1C) For the purposes of subsection (1B), it is immaterial whether the thing is done with the knowledge or approval of the worker’s employer.”

[73]The parties have been unable to find any case law directly on the issue of the meaning of “agent” in section 47B ERA. However, the legal provision is written in similar terms to that in sections 109 and 110 of the Equality Act 2010 and the equivalent provisions in its predecessor legislation. The parties have referred me to case law on the discrimination provisions which I consider is of assistance in interpreting the similar provisions in section 47B ERA.

[74]I was referred to three authorities: Yearwood v Commissioner of Police of the Metropolis

[2004] ICR 1660

EAT, Ministry of Defence v Kemeh,

[2014] ICR 625

and Unite the Union v Nailard

[2019] ICR 28

CA.

[75]In Yearwood the EAT concluded that, where “agent” and “principal” were used in the discrimination Acts which were the precursors to the Equality Act 2010, the terms were not used in a general sense, but in the particular sense of an agency as understood in common law, with the only change being that, in accordance with the discrimination legislation, both principal and agent would be liable for the act of discrimination (the EAT were held by the Court of Appeal in Ministry of Defence v Kemeh to be wrong in saying the agent would not also be liable at common law, but the Court said this did not undermine the EAT’s reasoning). Judge McMullen QC quoted from Bowstead and Reynolds on Agency for the common law meaning of agency. The judge noted, at paragraph 39, that an important incident of the relationship is that an agent may be appointed to do any act on behalf of the principal which the principal might do himself or herself.

[76]In Ministry of Defence v Kemeh, the Court of Appeal considered the concept of agency in section 32 of the Race Relations Act 1976 (RRA) in the context of a claim brought by a soldier about racially abusive comments by the employee of a company providing catering services to the Army. Elias LJ reviewed the case of Yearwood. He agreed with the conclusion of the EAT that, on the facts, there was no agency relationship but commented, at paragraph 36, that this conclusion did not turn on the particular concept of agency employed. He wrote: “The officers were independently exercising an authority conferred by the Regulations. The chief constable chose them for the task but he was not thereafter the source of their authority. It could not sensibly be inferred, in the face of the Regulations, that the disciplining officers were exercising their powers by virtue of any authority conferred by the chief constable. No implied authority from the chief constable was needed to explain why they had the power they did.”

[77]Elias LJ expressed doubt about how significant the differences between the two concepts of agency advanced in Yearwood are.

[78]In paragraph 38, Elias J wrote: “The concept of agency at common law is not one which can be readily encapsulated in a simple definition. As the editors of Bowstead & Reynolds point out, no-one has the correct use of this or any term. Moreover, Judge Peter Clark appears to have had reservations about the requirement, considered to be an essential part of the definition by the appeal tribunal in the Yearwood case, that an agent must have power to affect the principal’s legal relations with third parties. In fact the authors of Bowstead & Reynolds (see para 1—04) recognise that someone might quite properly be described as an agent even where this feature is missing.”

[79]At paragraphs 39 and 40, Elias LJ wrote: “39 Even in the so-called “general concept of agency” advanced in the Yearwood case, it would be necessary to show that a person (the agent) is acting on behalf of another (the principal) and with that principal’s authority. Once it is recognised that the legal concept does not necessarily involve an obligation to affect the legal relations with third parties, I doubt whether the concepts are materially different. “40 But ultimately it is not necessary for the purposes of appeal to resolve that question. Whatever the precise scope of the legal concept of agency, and whatever difficulties there may be of applying it in marginal cases, I am satisfied that no question of agency arises in this case. In my view, it cannot be appropriate to describe as an agent someone who is employed by a contractor simply on the grounds that he or she performs work for the benefit of a third party employer. She is no more acting on behalf of the employer than his own employees are, and they would not typically be treated as agents. (That is not, of course, to say that employees can never be agents; they might well be, depending on the obligations cast on them, such as where a senior manager is authorised to contract with third parties. He will be an employee but will also act as an agent when exercising the authority to deal with third parties.)”

[80]At paragraph 46, he concluded that, whatever, the precise scope of the agency concept in section 32 RRA, “in my view it must at least reflect the essence of the legal concept”.

[81]Lewison LJ agreed with the EAT in Yearwood that Parliament must be taken to have intended the legal concept of agency in the discrimination statutes to be interpreted in accordance with ordinary legal parlance.

[82]Kitchin LJ agreed with the judgments of both Elias LJ and Lewison LJ.

[83]I have found Unite the Union v Nailard

[2019] ICR 28

CA of less assistance since, in that case, as noted in paragraph 43, they were not considering whether not, an agency relationship exists at all (as we are in this case), but with liability in tort for acts done in the course of an agency relationship. Conclusions Whether the Cabinet Office was acting as the agent of HMRC

Conclusions

[84]I note from the authorities there may be some uncertainties as to the exact limits of agency in the context of the Equality Act 2010 and, by analogy, that of section 47B ERA. However, I consider that the issue of whether the Cabinet Office was acting as the agent of HMRC in failing to take action about the matters raised in that letter until 14 December 2018, can be decided on the basis of what is clearly part of the essence of agency: for a person to be acting as the agent of another, they must be doing the relevant act by virtue of authority conferred by the principal. Elias LJ noted in relation to Yearwood that the chief constable was not the source of the officers’ authority; this came from the relevant regulations (see paragraph 76).

[85]I conclude that, in this case, the Cabinet Office was not acting by virtue of any authority conferred by HMRC when acting in relation to a claim for benefits under the CSIBS. The powers of the Cabinet Office were delegated to them by the Minister for the Civil Service. The Minister for the Civil Service has the power, under the Superannuation Act 1972, to make, maintain and administer schemes such as the CSIBS. Section 1(2) of that Act allows the Minister to delegate “to any other Minister or officer of the Crown any functions exercisable by him by virtue of this section or any scheme made thereunder.” The Cabinet Office, if it subjected the claimant to detrimental treatment as alleged, was not acting by virtue of authority conferred by HMRC. It was acting by virtue of powers under the statutory scheme delegated to it by the Minister for the Civil Service.

[86]I conclude, therefore, that the Cabinet Office was not acting as the agent of HMRC and there is no basis for liability under section 47B ERA against the Cabinet Office. I, therefore, dismiss the Cabinet Office as a respondent to the proceedings in both cases. Whether Health Assured Limited was acting as the agent of HMRC

[87]I need to decide whether Health Assured acted as agent for HMRC, either directly or through the Cabinet Office (if the Cabinet Office was an agent of HMRC) in failing to complete a review assessment required under CSIBS by 30 June 2017.

[88]My conclusion that the Cabinet Office was not acting by virtue of authority conferred by HMRC when acting in relation to a claim for benefits under the CSIBS means that Health Assured Limited cannot have been acting as agent for HMRC through the Cabinet Office. If the Cabinet Office was not an agent of HMRC, it could not delegate authority from HMRC. I am left, therefore, with the remaining issue of whether Health Assured was acting directly as agent for HMRC in failing to complete a review assessment required under CSIBS by 30 June 2017 (it being assumed for the purposes of this hearing that Health Assured did subject the claimant to detrimental treatment in this way).

[89]It does appear that HMRC had some role in Health Assured being commissioned to provide services. The claimant’s evidence that he was told by MyCSP that he had to make his application to HMRC and the medical report from Health Assured which refers to the report being prepared at the request of the “department”, in turn identified as HMRC, suggests that HMRC made the request for the initial medical report. It is agreed that HMRC bears the cost of the report (and, if an award is made, bears the cost of the award). The claimant asserts that there would have been a purchase order raised by HMRC for the report and that there would have been a contract between HMRC and Health Assured. The claimant is unhappy that the purchase order (if there was one) has not been disclosed. Mr Spain has been able to tell me about the current practice, which he understands would not involve a purchase order, but could not say that there would not have been a purchase order at the time of the report about the claimant. For the purposes of deciding the agency issue, I, therefore, assume (without deciding this) that there was a purchase order and there was a contract between HMRC and Health Assured for the provision of the medical report.

[90]Factoring in this assumption, the factual situation is as follows. The Minister for the Civil Service has delegated power to administer the CSIBS to the Cabinet Office. In turn, the Cabinet Office has delegated to MyCSP Ltd the administration of the CSIBS in accordance with the Rules and guidance provided by the Cabinet Office. Health Assured Limited provides medical advice, in accordance with the Framework Agreement, to help the scheme administrator make a decision as to whether to award benefits under the CSIBS and, if an award is to be made, how much is to be awarded. MyCSP Ltd makes the decision about the award of benefit, under its delegated power from the Cabinet Office. If an award is made to an HMRC employee, such as the claimant, HMRC is required to meet the cost of that award.

[91]I conclude that the 2013 booklet “Injury Benefit Scheme – A Brief Guide” is misleading when it states: “MyCSP also processes injury benefit claims on behalf of your employer”, if this is intended to include claims for benefits under the CSIBS. This is not an accurate description in so far as it states that the claims are processed on behalf of the individual’s employer. The claimant was entitled to be considered for a discretionary award under the terms of the CSIBS because he was an employee of HMRC but the statutory scheme is independent of HMRC and other Civil Service employers. HMRC had no role in the decision as to whether the claimant would be given an award. The power to make that decision lay with MyCSP Ltd, having that power delegated by the Cabinet Office which, in turn, had its power delegated by the Minister for the Civil Service. The Minister for the Civil Service derives his power in relation to the CSIBS from the Superannuation Act 1972.

[92]The fact that HMRC is required to pay for the services of Health Assured Limited and then for any benefit awarded to the claimant under the terms of the CSIBS does not give HMRC any powers in the decision making process, including a review assessment. HMRC does not, therefore, have any authority which it can delegate to Health Assured Limited in relation to a review assessment and Health Assured Limited cannot, therefore, in providing advice in relation to the review assessment, be acting as agent for HMRC.

[93]Even if Health Assured Limited was performing its work for the benefit of HMRC as well as MyCSP Ltd, this would not be enough, by itself, to make Health Assured Limited the agent of HMRC when doing that work. Elias LJ stated in MOD v Kemeh (see paragraph 79) that it cannot be appropriate to describe as an agent someone who is employed by a contractor simply on the grounds that he or she performs work for the benefit of a third party employer.

[94]I consider that the claimant’s argument (paragraph 5) that an electrician engaged by a prime contractor for an employer commissioning building works would be an agent of the employer would fail for this reason. Whether the employer could be liable on some other basis for negligence of the electrician is not something I need to decide and does not assist with the issue before me, which is of agency.

[95]Health Assured Limited was not acting on behalf of HMRC (or even MyCSP) in providing medical advice. It was providing a service in supplying independent medical advice to enable MyCSP to make a decision as to entitlement to benefits under the CSIBS. I consider that the arrangements lack the essence of agency, which is that the agent acts on behalf of the principal, with the principal’s authority.

[96]I conclude, therefore, that Health Assured Limited was not acting as the agent of HMRC in failing to complete a review assessment required under CSIBS by 30 June 2017 (if this was proved to be the case). Health Assured Limited cannot, therefore, be liable to the claimant for subjecting him to a detriment, under the provisions of section 47B ERA. I, therefore, dismiss Health Assured Limited as a respondent to case number 2404018/2017.

[97]In coming to this conclusion, I do not rely on the arguments Health Assured’s representative has made under the heading “Comity” i.e. that it would be undesirable for the Tribunal to make a decision which conflicted with the decision of then Regional Employment Judge Parkin that it was a bridge too far to find that Health Management Limited (Health Assured’s successor) was an agent of HMRC in respect of their role in the CSIBS. REJ Parkin was considering whether the argument that Health Management Limited acted as the agent of HMRC had no reasonable prospect of success; I have been considering whether or not, on a balance of probabilities, Health Assured Limited was acting as agent for HMRC. I have had more material available to me than was available to REJ Parkin. I have considered it appropriate to consider the issue afresh, on the basis of all the evidence available to me and the submissions of the parties. Had I reached the conclusion on the evidence available to me that Health Assured Limited was acting as agent for HMRC, I would have made that decision, despite the potentially anomalous resulting position that one scheme health advisor remained as a respondent whilst its successor had been dismissed as a respondent. The claimant’s arguments about legal responsibilities deriving from the Minister for the Civil Service

[98]The claimant appears to argue that HMRC had a role in the process relating to a claim under the CSIBS and the Cabinet Office and Health Assured Limited could be acting as its agents, because all legal responsibilities derive from the Minister for the Civil Service (see paragraph 8 onwards of the claimant’s submissions). Even if the Minister for Civil Service could have chosen to delegate responsibilities in relation to administration of the CSIBS to employers including HMRC, there is no evidence that the Minister did so. Power was delegated to the Cabinet Office and then to MyCSP Ltd. Even if HMRC’s powers as an employer derive from the Minister for the Civil Service, this does not give HMRC power in relation to decisions as to benefits under the CSIBS. Since HMRC did not have these powers, it could not delegate them to the Cabinet Office or Health Assured. I conclude that this “single source” argument does not provide a basis on which the Cabinet Office and/or Health Assured Limited can be found to have been acting as agents of HMRC.

compensation

[99]In relation to unreasonable conduct Mr Hurd relied on two aspects of the claimant's behaviour which he said were unreasonable: the failure by the claimant to prepare at all for the final hearing over 14 days by not reading the respondent’s witness statements and taking any steps to access the trial bundle; and the claimant’s conduct in disengaging from the hearings in the manner described above.

[100]In terms of why the respondent said that a fair trial is not possible, Mr Hurd suggested to us that it was clear that the claimant's mental health was such that he was not able to engage with the issues, that he faced profound difficulties in representing himself and that where the Tribunal has sought to explain issues to him, he had misunderstood what he has been told. However, he highlighted to us that if the claimant did not like what has been said to him, the claimant has misunderstood what has been said or if he found himself unable to comply with an instruction, such as to refer to a specific part of a document that he purported to be quoting from, his response had been to disconnect completely from the hearing. Mr Hurd likened that to a claimant who simply walks out of a tribunal hearing and argued that conduct was unreasonable.

[101]We were reminded that in accordance with the ground rules set at the outset it had been agreed that the claimant could switch off his camera but that was to enable him to regain his composure and to protect his dignity if required, with it being envisaged the hearing would resume. On two occasions that had not happened resulting in the loss of significant hearing time. Mr Hurd pointed out the particular difficulties that this has caused in relation to Mrs Black’s evidence. The claimant had been warned that he needed to complete cross examination of Mrs Black in the afternoon to enable the following day to be available to deal with the evidence of the dismissing officer Mr Owen but the claimant had chosen to absent himself from much of the afternoon resulting in her cross examination not being completed.

[102]Mr Hurd highlighted to us the contents of the claimant’s emails received the day before this application which make clear that the claimant would have profound difficulties in responding to the tribunal in relation to the list of issues and asking questions. Mr Hurd also reminded us that it had emerged on the first day that the claimant had not read any of the bundles or the witness statements and that although the claimant has clearly done some reading subsequently and was able to identify some relevant documents, he was still unable to identify specific references. It was this issue which had led to the claimant to problems in the cross examination of both Mrs Beesley and Mrs Black. It was also the case that when the employment judge had addressed the claimant about the legal tests and issues in the cases he continued to be misunderstand what was being said. That had led directly to the claimant choosing not to the attend the tribunal for the most important respondent witness, the dismissing officer, despite knowing that witness is on long term sickness absence, was attending from Northamptonshire and due to hospital appointments would only be available on that one day, if the respondent was to be allowed a fair allowance of time for the claimant’s cross-examination.

[103]Further the most important part of the case was still to come because if the claimant chose to give evidence he would have to be subject to cross examination which would involve the claimant having to be taken through documents. Based in the experience of that last few days Mr Hurd invited us to conclude that it would be unlikely we could conclude his evidence and that the difficulties faced so far in the case would continue.

[104]It was put to us that that the above concerns have to be seen in a very particular context of a dismissal which happened in June 2015 and a previous hearing in November 2021 which was postponed shortly before hearing on grounds of the claimant’s health. Mr Hurd pointed out that it does not appear that the claimant’s health has improved and indeed the claimant himself had suggested that delving into past issues had exacerbated the claimant’s stress and anxiety. Mr Hurd reminded us about what had been said when he had understood the claimant was applying for a postponement of the hearing at the start about the difficulties of the passage of the time and the need for this case to be heard which the claimant had agreed with. Mr Hurd underlined the prejudice for the respondent; the fact that two of the witnesses still not heard by the tribunal have retired from the respondent’s employment and that the respondent was reliant on their goodwill. He argued that there has to be justice between parties and even in a case where decisions and meetings have been extensively documented, it is simply impossible for witnesses to recall what has happened after a long passage of time. Further there was no suggestion that the claimant was temporarily unwell. The claimant’s health problems extend back to at least March 2013 with no indication that they were likely to resolve in the foreseeable future.

[105]Mr Hurd suggested that the tribunal now found itself in a difficult situation with apparently little prospect of continuing based in what the claimant had said in recent correspondence and equally little prospect of that changing over time. The claimant has identified that he needed legal advice. The respondent did not disagree with that but Mr Hurd made the observation that it was something which should have been sought years before in relation to the list of issues and the jurisdiction of the Tribunal.

[106]In summary we were reminded that the strike out is, on any analysis, a step not be taken lightly and there are numerous authorities which make clear that it is a draconian step which can only be taken in the most unusual of circumstances. That was recognised by the respondent, but Mr Hurd reiterated his grounds of making this application were that the manner the claimant has pursued the proceedings in the case have been unreasonable and his principle basis for making that application was that by turning off his camera the claimant had effectively walked out of the hearing and refusing to attend with the consequent difficulty for the ability of the tribunal to effectively timetable and manage the case. Secondly it was submitted a fair hearing was no longer possible and our attention was drawn to the authority in the Croma Vigiliant case (see below) that the power is exercisable if the case cannot be heard in the available trial window, although that does not mean that it is not appropriative to consider postponement as an alternative.

[107]In terms of any alternative to strike out, it was suggested to us that our only realistic alternative was to carry on whether or not the claimant chose to participate. Mr Hurd suggested to us he could call the remainder of the respondent witnesses but argued that in light of the difficulty with understanding what the claimant’s case was from his statement and where the claimant had been unable to articulate that further the tribunal had to consider if a fair hearing was possible for either party.

[108]We also heard further oral submissions from the claimant. He told us that he considered Mr Hurd’s submissions to be discriminatory. He told us that he wished the hearing to proceed but also acknowledged his difficulties and that he did not know how he could participate.

[109]In terms of the contents of his email, the claimant was asked if he was saying that he wished to withdraw all of his claims other than the “ordinary unfair dismissal claim” in relation to the identification of covert recording as misconduct which is how he seemed to suggest we could proceed. The claimant told us that he was not withdrawing his claims, but he would accept them being struck out if we proceeded on this basis. When asked how he was proposing we would proceed in terms of evidence and cross-examination he did not answer directly. He suggested that the aspect of his unfair dismissal case he wanted us to decide was clear cut and had to be found in his favour, but Mr Hurd disputed that. Mr Hurd pointed out that the documents did not say what the claimant told us that they did. The claimant told us that the respondent policy referred to covert recording as “conduct” not “gross misconduct”. Mr Hurd pointed out that the wording in the relevant policy is actually that if there was covert recording that would result in disciplinary action without specifying how it would be categorised, and although it was not identified expressly as gross misconduct, Mr Owen had explained why, in terms of the respondent’s policy on assessing gross misconduct, he said that the claimant’s conduct justified dismissal.

[110]Mr Hurd also raised concerns about how we could proceed as suggested by the claimant or otherwise because that would require careful case management which the claimant had made repeatedly shown he was not prepared to accept and he regarded as evidence of bias. Mr Hurd suggested that based on the reality of the previous eight days in hearing we could only expect that the problems would continue and increase, and we would inevitably find ourselves back in the same position again. In any event the claimant had told us that he was too unwell to continue. If the present case was to be adjourned and relisted to wait for the claimant to be well enough to continue there would inevitably be a long delay in being able to obtain the necessary trial window for a hearing which would require at least the same listing as this one. Mr Hurd argued that this Tribunal panel had to recognise the passage of time and their ability to recall events which are already (in relation to the dismissal) almost eight years ago. Mr Hurd also pointed to the very real possibility that the respondent would lose the cooperation of witnesses, some of whom have left employment and who have already made themselves available for a hearing on two previous occasions. Finally, and most significantly, Mr Hurd pointed to the fact that the real and crucial basis for the problems in conducting the hearing for this Tribunal appeared to be the claimant's belief that he faces prejudice and lies from the Tribunal, and that in the circumstances where there seemed no possibility of that belief changing, there appeared to be every possibility that we would face the same problems again.

[111]In terms of proceeding on the limited unfair dismissal basis, the claimant to made further submissions about what the tribunal should consider which referred to us taking into account issues relevant to whether the dismissal had been automatically unfair because he had made protected disclosures. In other words although the claimant told us that he wanted to proceed on a limited basis, his position was inherently contradicted by what he wanted us to take into account. The claimant told us he could not say if he would participate in the hearing or not based on his health. The law Rule 37 Employment Tribunal Rules of Procedure 37.—(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; (c)….. (d) …. (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). (2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.

The law

[112]The application of our strike out powers requires a two stage process. First we must consider if the power to strike out has been engaged, that is we must assess if there has been conduct on the part of the claimant which can be categorised as unreasonable or if circumstances exist which mean that a fair hearing may no longer be possible.

[113]Having reached that conclusion we have to consider if we should exercise that power to strike out and that means considering if there are less draconian means by which we could address our concerns. It is always in the interests of justice that a case is heard if that is possible. It is also in the public interest for claims of serious allegations of wrongdoing involving public interest disclosures (‘whistleblowing’) or discrimination to be determined on their facts. Faced with such a claim we recognised that we should do all we could to hear the case

[114]In considering whether a claim should be struck out on the grounds of scandalous, unreasonable or vexatious conduct, a tribunal must consider whether a fair trial is still possible — De Keyser Ltd v Wilson

2001 IRLR 324

, EAT. In that case the EAT made it clear that certain conduct, such as the deliberate flouting of a tribunal order, can lead directly to the question of a striking-out order. However, in ordinary circumstances, neither a claim nor a defence can be struck out on the basis of a party’s conduct unless a conclusion is reached that a fair trial is no longer possible.

[115]In Bolch v Chipman

2004 IRLR 140

, EAT, the EAT set out the steps that a tribunal must ordinarily take when determining whether to make a strike-out order:a. before making a striking-out order under what is now rule 37(1)(b), an employment judge must find that a party or his or her representative has behaved scandalously, unreasonably or vexatiously when conducting the proceedings

b. once such a finding has been made, he or she must consider, in accordance with De Keyser Ltd v Wilson (above), whether a fair trial is still possible, as, save in exceptional circumstances, a striking-out order is not regarded simply as a punishment. If a fair trial is still possible, the case should be permitted to proceed and even if a fair trial is unachievable, the tribunal will need to consider the appropriate remedy in the circumstances. It may be appropriate to impose a lesser penalty, for example, by making a costs or preparation order against the party concerned rather than striking out his or her claim or response.

[116]This process will include considering whether striking out the claim was a proportionate sanction and whether there is an alternative, such as allowing the hearing to proceed in the absence of the party.

[117]We recognised that it is very unusual indeed for conduct to be much that it justifies striking out on procedural grounds a claim that had arrived at the point of trial even if claimant has been “difficult, querulous and uncooperative’, because the courts and tribunals must be open to the difficult as well as to the compliant so long as they do not conduct their cases unreasonably. In considering whether a case has been conducted unreasonably, a tribunal should bear in mind that the time to deal with persistent or deliberate failures to comply with rules or orders is when they have reached the point of no return.

[118]Mr Hurd highlighted the decision in Emuemukoro v Croma Vigilant (Scotland) Ltd and ors

2022 ICR 327

to us. In that case the EAT rejected the proposition that the question of whether a fair trial is possible must be determined in absolute terms; that is to say, by considering whether a fair trial is possible at all, not just by considering, where an application is made at the outset of a trial, whether a fair trial is possible within the allocated trial window. Where a party’s unreasonable conduct has resulted in a fair trial not being possible within that the allocated window, the power to strikeout is triggered. We recognise that this case is somewhat different from the situation in Emeumukoro which is a case where the issue was the strike out of a response where the respondent had failed to comply with case management orders and the strike-out application was considered on the first day of the hearing. The parties were agreed that a fair trial was not possible in the hearing window and it was not disputed that an adjournment would have resulted in unacceptable prejudice to the claimant. Nevertheless, we accepted that in assessing whether our power to strike out on the basis that a fair trial is no longer possible where there has been unreasonable conduct, that power is engaged when a fair trial is not possible in the relevant trial window, albeit we must also look at whether there are less draconian alternatives to striking out.

[119]In terms of the free-standing ground of strike out in Rule 37(1)(e), that a fair trial no longer being possible, there is of course a clear overlap with the conduct ground for striking out because it is only appropriate to strike out where there is unreasonable conduct and a fair trial is no longer possible, but it is possible ground on its own, albeit a somewhat unusual one to rely on.

[120]Mr Hurd drew our attention to Peixoto v British Telecommunications plc EAT 0222/07 in which it was held that that an employment tribunal had not erred in striking out claims of unfair dismissal and disability discrimination made by a claimant suffering from chronic fatigue syndrome on the basis that it was no longer possible to have a fair hearing. The claimant had asserted that she would not be physically able to give oral evidence, the case could not be decided on the documents alone and there was no prospect of the claimant being able to proceed at any time in the future, particularly given the nature of the medical evidence, which had persistently predicted a sufficient recovery that did not in fact materialise. In the absence of any prognosis for recovery, the tribunal was unable to establish any point in the foreseeable or even distant future when a trial could take place and concluded that a fair hearing was no longer possible. This conclusion was rooted in

Article 6 of the European Convention on Human Rights

, which lays down the right to a fair trial, including the right to have a trial within a reasonable time. The tribunal had considered less draconian measures but was entitled to strike out the claims on the ground that a fair trial was impossible. Accordingly, the EAT could find no error of law in the tribunal’s decision and the appeal was dismissed. In reaching its conclusion, the EAT commented that those who know most about whether a fair trial is possible in an employment tribunal are those specialist members and employment judges who are there day in and day out.

[121]The extent to which our power to strike out on this ground should be exercise cautiously is illustrated well by the decision of the then President of the EAT, the Honourable Mr Justice Langstaff (PRESIDENT) in Osonnaya v South West Essex Primary Care Trust EAT 0629/11 to which our attention was also drawn. In that case it was held that an employment tribunal had erred in striking out a claim on its own motion on the basis that a fair hearing was no longer possible in circumstances where a preliminary hearing, initially listed for half a day, had still not been concluded 133 hearing days later. The tribunal sat on 32 of those days but not even all of those were effective. The claimant was not at fault in any way for this. The principal reason was her serious illness. Part way though the case the employment judge had held that he could see no end to the case because of the claimant’s ongoing ill health and identified prejudice in the continuing cost to the respondent and the possible absence of a witness who was abroad. It was held that that this approach was in error. To say that "no end was in sight" was an overstatement given the stage the case had reached; he could have but did not ask for more detailed medical material; did not sufficiently consider the use of case management powers to ensure expeditious hearing; did not appreciate the impact the determination of the pre-hearing review might have on the claim as a whole, and the basis for his decision was insufficient.

[122]We knowledge that it was not open to us to strike out a claim because of the apparent damage to the claimant’s wellbeing being caused by the effects of the litigation. We cannot say that it would be in the claimant’s best interests to strike out his claims (Mukoro v Independent Workers’ Union of Great Britain and ors EAT 0128/19). Discussion and decision to strike out

[123]The Tribunal recognised that the best way for this way for this Tribunal to serve justice for everyone involved in this case would be for us to determine the substantive issues and merits of the case if we could. From the start, that is what this Tribunal panel had sought to do and indeed, after overcoming some initial difficulties, we had thought perhaps there was some hope that we could achieve that after the claimant had agreed to proceed by way of CVP.

[124]It was always clear that this was going to be a challenging hearing for all involved. The Tribunal panel agreed with Mr Hurd’s observations that the claimant clearly has significant mental health issues. This Employment Tribunal panel struggled in the absence of any expert medical diagnosis of the claimant. The only such diagnosis that we have points to depression and anxiety, but the claimant himself suggests that he suffers from mental health difficulties which perhaps would have an even greater impact than those already potentially serious conditions.

[125]We have no doubt whatsoever that the claimant has found this hearing to be very difficult in terms of his mental health. He has told us on several occasions that his mental health has worsened as a result of this hearing, and we have no reason to doubt what he says about that. Our difficulty was that in the absence of expert guidance on how we should approach the mental health difficulties that the claimant experiences, and despite our best attempts to find solutions which did seem to be available to us, it is clear we have not been able to ameliorate the difficulties faced by this claimant. We did the best that we could with the information provided to us.

[126]It is important that we make this clear in our decision because we recognise in circumstances where we categorise conduct as unreasonable that may appear to be an inappropriate thing to say, where the difficulties have been caused by mental health. Categorising conduct as unreasonable appears to attribute blame to the conduct in question. We are unable to say if the conduct which the Tribunal has seen is indeed in consequence of the claimant's mental health.

[127]The claimant has been told many times, and by many judges, what the Tribunal can and cannot consider in terms of the scope of its jurisdiction in relation to claims relating to protected disclosures and unfair dismissal, but the claimant is unwilling, or unable, to accept that. That dissatisfaction has led him to perceive prejudice and appears to have led to a belief on his part that the Tribunal is actively seeking to avoid considering his claims and finding in his favour. That is not the case, but this Tribunal finds itself powerless to overcome the claimant's refusal to accept that he may be wrong in his belief about what the Employment Tribunal can and cannot consider. We have not found that to be unreasonable conduct in itself but it is the context of the claimant’s conduct, aspects of which we have found to be reasonable.

[128]We do not expect dissatisfied parties to agree with the Tribunal says in circumstances like this and we acknowledge, of course, the importance of allowing access to justice for everyone – including the “difficult, querulous and uncooperative”. We recognise that they are unlikely to do so and it is not unusual for someone to continue to express their happiness. The problem faced by the Tribunal here was that the claimant’s perception of bias appeared to have made him unable or unwilling to prepare for a hearing involving thousands of pages evidence and witness statement evidence going back over many years. It also prevented him from being able to cooperate with the Tribunal to enable us to progress through the evidence in a way which was fair to the claimant and the respondent’s witnesses. His expression of his unhappiness with the tribunal by disconnecting from the hearing, meant that we had not been able to get through the evidence in the way we needed to. It was due to the claimant’s conduct that by Day 9 of 14 we had only got through four witnesses even though three of those witness could be expected to be short, and the main respondent witness had not in fact been cross-examined by the claimant.

[129]We agreed with Mr Hurd that this conduct of the proceedings by the claimant was objectively unreasonable. The claimant told us that he had not prepared for the hearing because it would cause him trauma to do so, although he also told us that if he had a reason to read the documents he could do so. The approaching final hearing was of course a good and focused reason to read the documents and statements and prepare for this case. We have no doubt that preparing for the case would be stressful and difficult, that it has an unfortunate consequence of the litigation process and that was never going to change. The claimant has known about the dates of this hearing since it was listed. In November 2021 REJ Franey had emphasised that if it was not possible for this hearing to go ahead there might be no alternative to strike out his claim because a fair trial was no longer possible. The claimant can have had no reason to doubt the importance of being ready for this hearing. Through the extensive case management in this case, the claimant can have had no misapprehension about the fact that he would have to present his case at this hearing. In that context we found the claimant’s decision not to do even the most basic preparation for the final hearing, such as retrieving bundles from boxes and reading statements, to be unreasonable.

[130]Of course, not preparing for this hearing was the claimant’s own choice. It is not in itself grounds to strike out his claim, but in this case that unreasonable decision by the claimant not to prepare had also contributed directly to his conduct in the course of the hearing. The claimant appeared to find it unfair for him to be required to take a witness to where in a document it said what he said it did and it was that led him to disconnect, but if he had read the documents he would have known what they said, as opposed to relying on his recollection or perception of what a document had said. The claimant’s conduct of the cross examination of respondent’s witnesses had been unreasonable.

[131]The claimant also perceived it to be unfair bias of the tribunal for it to refuse to allow him to prosecute matters he had been told that on several occasions by different judges are not relevant. It is not unreasonable for him to disagree with those decisions, but it was unreasonable for him not to allow the hearings to progress because of that disagreement. That conduct resulted in much time being lost. When that was coupled with the claimant disengaging with the tribunal hearings that his conduct became more than simply disruptive or challenging. It had also led the claimant to make an application for a stay which he could not reasonably believe would be granted. The claimant knew from November 2021 what would be required for an adjournment on medical grounds and he had been told repeatedly over the years about the scope of the law. The claimant cannot reasonably have believed that this final hearing should be delayed for him to take legal advice, nor can the claimant have reasonably though the hearing should be paused to allow him to lodge an appeal.

[132]The claimant’s conduct of his case had unreasonably disrupted these proceedings and as a result of the conduct in question we considered that there was no prospect of completing the evidence within the trial window. Accordingly, we were satisfied that the power to strike out the claim on the grounds submitted by Mr Hurd had been engaged.

[133]The fact that the power to strike out had been engaged did not mean that we should strike out the claims. As a panel we wanted to hear the claims if we possibly could and we approached our decision on that basis so at the that the next stage of considering if we should exercise our power to strike out, and our focus was on whether we could find a less draconian to manage conduct and to achieve a fair trial.

[134]We considered carefully what we could do to keep the hearing on track, at least to some extent. We concluded that our biggest barrier to being able to do that was the claimant’s inability or unwillingness to accept any case management or direction from the Tribunal because he appeared to see all such attempts as attempts to unreasonably or unfairly limit his case.

[135]This was not a case where we could see seeking to deal with conduct challenges through costs warnings would assist because that would simply increase the claimant’s perception of bias and make matters worse.

[136]We considered if we could determine the case in a fair and just way by treating the claimant’s witness statement as a written submission. The Equal Treatment Bench Book (ETBB) identifies difficulties commonly encountered by litigants in person. The introduction to Chapter 1 says this: “Litigants in person may be stressed and worried: they are operating in an alien environment in what is for them effectively a foreign language. They are trying to grasp concepts of law and procedure, about which they may have no knowledge. They may be experiencing feelings of fear, ignorance, frustration, anger, bewilderment and disadvantage, especially if appearing against a represented party.” We took that on board.

[137]The ETBB identifies various steps which can be put in place to help those with mental health conditions including anxiety when it comes to tribunal hearings but some of the suggestions whilst helpful in the course of the case management, such as allowing additional time for action or holding additional hearings, do not assist at a final hearing. One of the suggested adjustments is: “In severe circumstances, allow…written submissions to be provided”. In the circumstances we considered if we could proceed on that basis, but we faced the difficulty that this was case where there are disputed facts and the claimant had presented a witness statement which did not seem to explain his case in any meaningful sense by reference to the list of issues, nor did it tell us what documents the claimant wanted us to consider. We agreed with Mr Hurd that the claimant’s case about the claims which were where within scope of this hearing could not be said to be sufficiently clear. For example the issue about the respondent’s policy not referring to covert recording as gross misconduct is not referred to all in the claimant’s witness statement. As a panel we did not see on what basis we could proceed with a case when we understood the claimant would no longer participate in the evidential process in those circumstances and we determined that this would be a just way to continue.

[138]We gave serious consideration to proceeding on the limited basis suggested by the claimant in relation to his unfair dismissal claim. On balance we agreed with Mr Hurd that although the claimant himself had suggested that as a possibility, in fact he would not or could limit his case in the way he suggested. It was very clear from his own submissions about covert recording being an unfair reason to end his employment in terms of the respondent’s policy, that in fact he intended to present a much wider case referring to his protected disclosures. His position was contradictory. The only way that amended case could be considered would be through careful case management and agreement about the issues, but it was clear to us that based on the experience of judges over previous hearings and our own experience of the claimant’s conduct that that would be impossible. Even when the claimant appeared to accept something, for example in terms of the list of issues, he would change his mind and we are particularly concerned about the claimant’s misrepresentation about what he had been told both by the judge in this case and also by judges in previous hearings. We concluded that trying to complete this case by applying strict case management to limit the scope of the issues would not only be fruitless, it would simply make matters more stressful and unmanageable for this claimant who was already telling us the tribunal process was causing him to self-harm.

[139]Finally we considered if we should adjourn and relist this case for a future hearing. We considered and accepted Mr Hurd’s submissions about that could not result in fair trial. First as Mr Hurd pointed out this was not a situation where we had any reason to believe that that the claimant’s health would improve. He told us that his mental health has got worse not better. The claimant clearly continues to believe that the past decisions of the tribunal have been fundamentally biased and after so many years we could not see any reason why that would change. We concluded that unless and until the claimant could accept that the Tribunal could only determine the issues in the List of Issues and not claims which had been struck out, it would be impossible to conduct a hearing at which the claimant would be able to present his case. What is more this is not a case where we could wait and see if things improved in this regard. We must ensure fairness, not only for the claimant but also for the respondent and its witnesses who even at this hearing face the challenge of being asked questions about matters from some 8 or more years ago.

[140]We noted that REJ Franey had warned the claimant that no future adjournments were likely to be possible because of the threat to the possibility of a future fair trial. We considered that warning had been made for good reason. We have to recognise the impact of the passage of time on witnesses’ recollection of events especially if, as here, any adjournment would inevitably be significant.

[141]It was therefore with reluctance that we concluded that a fair trial in this case was no longer possible, for reasons which were partly within the claimant’s control and due to his unreasonable conduct, and partly for reasons which it appeared were outside his control and related to his health. In the circumstances, concluded we had no alternative but to dismiss the claims.