Mrs A Yates v Your Housing Group Ltd: 2408724/2023

EMPLOYMENT TRIBUNALS

Case No 2408724/2023

Between

Mrs A YatesClaimant

Your Housing Group LtdRespondent

Before

Employment Judge McDonald

In person for claimant

Miss L Amartey (instructed by Counsel) for respondent

Date 18 February 2025

JUDGMENT

The judgment of the Tribunal is that the application to strike out the claim is refused.

REASONS

[1]This is my judgment on the respondent’s application to strike out the claimant's complaint of unfair dismissal. I heard that application at a public preliminary hearing on the 16 September 2024. The respondent also applied for deposit orders. I made my decision after considering the preliminary hearing bundle of documents and after hearing oral submissions from Miss Amartey and the claimant. I decided not to strike out the claimant’s claim but to make deposit orders. I gave oral reasons for my decisions and the claimant requested them in writing.

[2]In this Judgment I have explained my reasons for not striking out the claim. I have set out my reasons for making deposit orders and for the amount of deposits ordered in the Deposit Order of today’s date. Because I have split the reasons between those 2 documents the reasons will not follow the same order as the oral reasons I gave. I have also set out the relevant law I applied more fully than I did in the oral reasons, set out the background facts at greater length and re-ordered some sections to make the reasons easier to follow. The substance of the reasons remains the same. If there is any difference between my oral and written reasons, these written reasons take precedence. Case No. 2408724/2023 2

Relevant Law

[3]The decision in this case was made at a hearing in September 2024. At that point, the relevant Tribunal rules of procedure were the Employment Tribunal Rules of Procedure 2013 (“the 2013 Rules”). With effect from 6 January 2025 the 2013 Rules were replaced by Employment Tribunal Procedure Rules 2024. As this is written confirmation of decisions under the 2013 Rules this judgment and the Deposit Order will refer to those rules.

[4]Rule 37 of the 2013 Rules gives the Tribunal the power to strike out all or part of a claim: “37. — Striking out (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).”

[5]Rule 37(2) says that 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.

[6]In deciding whether to exercise the power the tribunal must have regard to the overriding objective and what is fair and just to both sides (T v Royal Bank of Scotland

[2023] EAT 119

, para 38). The overriding objective is set out in Rule 2 of the 2013 Rules which provides: 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;

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

(e) saving expense.

[7]In Bolch v Chipman

[2004] IRLR 140

EAT the EAT set out guidance for Tribunals when determining whether or not to make a strike out order, as follows:(i) There must be a finding that the party is in default of some kind, falling within Rule 37(1).

(ii) If so, consideration must be given to whether a fair trial is still possible and save in exceptional circumstances, if a fair trial remains possible, the case should be permitted to proceed.

(iii) Even if a fair trial is unachievable, consideration must be given to whether strike out is a proportionate sanction or whether there may be a lesser sanction that can be imposed.

(iv) If strike out is the only proportionate and fair course to take, reasons should be given why that is so.

[8]The power to strike out a claim is a draconian one – in other words, it should not be used unless there are very clear grounds for doing so. That is because any party to a case should ultimately have the opportunity to have their claim heard at a final hearing. However, in some cases the behaviour of a party can lead to a Tribunal deciding that it is appropriate to strike out a claim.

[9]The respondent’s strike out application argued that the claimant had acted vexatiously and unreasonably in pursuing the claim against the respondent. Alternatively, it argued her claim had no reasonable prospect of success.

[10]In ET Marler Ltd v Robertson

1974 ICR 72

, the court defined “vexatiousness” as the bringing of a claim for reasons of spite, to harass an employer or for some other improper motive. In Attorney General v Barker

2000 1 FLR 759

, QBD (DivCt) the court said that whatever the intention of proceedings may be, if the effect was to subject the (in that case) defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant, and that it involved an abuse of the court process this can amount to vexatious conduct.

[11]In Evans v London Borough of Brent EAT 0219/19, the EAT held that a Tribunal had erred in failing to allow that a finding of unfair dismissal, even absent the possibility of any monetary remedy, could be of value. That had led the Tribunal erring when determining whether it was in the interests of justice for the claim to proceed.

[12]When it comes to striking out a claim or part of it because it has no reasonable prospects of success, the case-law authorities warn that striking out a claim on this basis is generally inappropriate where there is a core dispute of fact. When making the assessment of the prospects of success, the Tribunal must Case No. 2408724/2023 4 generally take the claimant’s case at its highest, i.e. it must assume that the claimant will prove the primary facts asserted.

[13]In Ezsias v North Glamorgan NHS Trust [2007] I.C.R. 1126 the Court of Appeal said that “It would only be in an exceptional case that an application to an Employment Tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the applicant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation”.

[14]In an unfair dismissal claim the “central facts” include the reason for dismissal. In Romanowska v Aspiration Care Ltd

UKEAT/0015/14/SM

the EAT said that ‘where the reason for dismissal is the central dispute between the parties, it will be very rare indeed that that dispute can be resolved without hearing from the parties who actually made the decision’. Case

Summary

[15]The claimant complains of unfair dismissal. At the date of dismissal she was employed as ICT Business Partner. The respondent says that the claimant’s dismissal was fair. It says it was because of redundancy or (if the definition of a redundancy situation is not met) a business reorganisation amounting to some other substantial reason justifying dismissal. The redundancy applied to the claimant’s role and one other role. Alternatively, it says the dismissal was for some other substantial reason, namely that the claimant had requested that her employment be terminated so she could lave to take up a new job.

[16]I am not making findings of fact and there are disputes of fact between the parties, particularly about why certain actions were taken by the respondent and the claimant. However, the broad chronology of events was not in dispute. The claimant was informed on 27 January 2023 that her role was at risk of redundancy. On the same date, the claimant was invited to an individual consultation meeting on 31 January 2023. She attended that meeting with her trade union representative. A second consultation meeting took place on 8 February 2023. The claimant attended that meeting with her trade union representative.

[17]After that meeting the claimant raised a grievance. It was in 2 parts. Part 1 was that the respondent’s CIO had purposefully removed the claimant from meetings in the months preceding her role being placed at risk, i.e. that her redundancy had been deliberately “engineered”. Part 2 related to what the claimant said was a lack of evidence about how her role had been determined to be redundant and a lack of proper consultation about the redundancy.

[18]The grievance was heard at a meeting on 24 February 2023. The claimant received the outcome on 30 March 2023. It said that Part 1 of the grievance was not upheld and that Part 2 would be dealt with as part of the redundancy consultation process.

[19]On 30 March 2023 (confirmed by email on 31 March 2023) the claimant requested that her final consultation meeting take place as soon as possible so that she could exit the respondent as soon as possible. She also confirmed that the Case No. 2408724/2023 5 respondent no longer needed to investigate Part 2 of her grievance. She was due to start a new job in early April.

[20]The final consultation meeting took place on 5 April 2023. The claimant’s dismissal was on 6 April 2023. On 11 April 2023 she started her new job.

[21]The claimant appealed against her redundancy on 21 April 2023. On 26 April 2023 the respondent confirmed that the appeal would not be considered because it had been submitted more than 5 working days after the decision to dismiss.

[22]The fact that the claimant had a new job which she was due to start imminently is potentially relevant for 2 reasons.

[23]First, the respondent says that the curtailment of the redundancy consultation process and the investigation of a grievance raised by the claimant during the process was at the claimant’s instigation. It says that on 30 March 2023 the claimant said she needed to leave the respondent’s employment imminently. It says she made clear she no longer wanted to pursue Part 2 of her grievance nor did she want to appeal against the rejection of the Part 1 of her grievance. The respondent says the claimant’s request to leave imminently amounted to an alternative substantial reason justifying dismissal. The claimant’s position is that she was given no choice but to request those things because the respondent had failed to progress the grievance or the redundancy process and she was at risk of losing her new job opportunity if her employment with the respondent was not brought to an end.

[24]The second reason the new job is relevant is when it comes to the potential remedy if the claimant’s claim of unfair dismissal succeeds. One of the facts which emerged during the hearing is that the claimant had relatively limited, if any, financial loss. The salary at which she started her new job was lower than that which she had earned at the respondent. However, the claimant confirmed that by 14 August 2023, when she filed her Tribunal claim, her salary at the new employment was more than her salary with the respondent at the point of dismissal. That means that, at most, any shortfall in salary lasted for 4-5 months. The claimant had received 12 weeks’ pay in lieu of notice and an enhanced redundancy payment. The enhancement was done by removal of the cap on a week’s pay which applies in calculating statutory redundancy pay. The receipt of a redundancy payment means that no basic award will be payable even if the claimant’s claim succeeds, because the redundancy payment “cancels out” that basic award (section 122(4)(b) of the Employment Rights Act 1996).

[25]Miss Amartey for the respondent submitted that when the payment in lieu of notice, the enhanced redundancy pay and the claimant’s current salary with her new employer were taken into account, the claimant had in fact suffered no financial loss for which the Tribunal would compensate her. The claimant had on 17 November 2023 provided the respondent with a Schedule of Loss claiming £32,989.31. £12,439.31 was financial loss for loss of time with her family arising from additional commuting time to and from work. £15,000 was for loss of progression and higher salary which the claimant said she would have earned had she remained employed by the respondent. Other items included loss of benefits including electric car charging, health care cash plan and loss of annual leave. The claimant also claimed an unspecified sum for stress and hurt arising from the respondent’s handling of the redundancy. The respondent’s position was set out in a letter dated 7 December Case No. 2408724/2023 6 2023 to the claimant . It said that some of the moneys claimed (i.e. the “loss of family time” and “stress and hurt” claims) were not ones which the Tribunal could or would ordinarily award compensation for. It asserted that the claimant had failed to provide evidence to substantiate the other losses she claimed and/or had failed to give credit that those might be offset in her new job. It also pointed out that she would not receive a basic award even if her unfair dismissal claim succeeded. In summary, Miss Amartey submitted, even a successful claim of unfair dismissal would not result in an award of financial compensation to the claimant. In the reasons below and the Deposit Order I refer to this as “the remedy issue”. Decision on the strike out application The remedy issue

[26]The strike out application based on the remedy issue was put in 2 ways. First, Miss Amartey said it was unreasonable and/or potentially vexatious for the claimant to proceed with her claim in circumstances where she had no reasonable prospect of satisfying the Tribunal at the final hearing that she had suffered any financial loss for which the Tribunal could compensate her. Even if she won, she would not be awarded compensation.

[27]It seems to me that Evans means that it is not necessarily unreasonable or vexatious conduct to proceed with a claim of unfair dismissal even in the absence of financial loss. If the claimant’s claim succeeds she would obtain the vindication of a finding that there was an unfair dismissal even if no compensation followed. I do not find that there is unreasonable or vexatious conduct in proceeding with a case where the prospect of obtaining such vindication still applies. That is particularly where I have not found on the evidence before me that there is no reasonable prospect of the claimant succeeding in her argument that she has suffered some financial loss. There was no undisputed evidence before me from which I could conclude that the claimant was acting vexatiously in pursuing her claim. I do not find the pre-condition for striking out on this basis is made out.

[28]If I am wrong about that, and the pre-condition was made out, I would need to go on to decide whether a fair hearing is still possible in this case. I find that it would be. I also find that strike out would not be proportionate. In this case, there is a potential alternative remedy for any unreasonable conduct on the part of the claimant in pursuing the claim to final hearing. If, having decided the case after hearing all the evidence the Tribunal at final hearing decided the claimant had conducted the case unreasonably, it would be open to it to make an award of costs against the claimant. The claimant has an income which is not insubstantial. This is not a case where the respondent might be faced with a claimant who does not have resources to pay any costs awarded.

[29]The respondent’s application to strike out the claim based on the claimant acting unreasonably or vexatiously in bringing it is refused.

[30]The second basis for strike out on the remedy issue was that even fi her claim succeed, there was no reasonable prospect of the claimant establishing that she had suffered financial loss for which the Tribunal would compensate her. I accept the respondent’s argument that the Tribunal will not award compensation for some of the elements of loss claimed by the claimant. That applies to those elements which relate to non-financial loss, e.g. the claim for stress and hurt arising from the Case No. 2408724/2023 7 respondents handling of the redundancy and to the “loss of time” claim arising from her longer commute to work depriving her of time with her family. Compensation for unfair dismissal is limited to financial loss. I have already explained that a basic award would not be payable. Without more detailed evidence I cannot say that there is no reasonable prospect of the claimant proving that any of the elements of loss she claims resulted in a financial loss for which compensation may be awarded. Some of those elements are the kinds of things the Tribunal may award compensation for subject to proof of loss, e.g. benefits such as electric car charging.

[31]The application to strike out the claim on this ground is refused. The 4 allegations on the liability issue

[32]The respondent also submitted that the claimant’s claim should be struck out because there was no reasonable prospect of her allegations that the dismissal was unfair succeeding.

[33]The claimant confirmed that she based her claim on four allegations:a. That the dismissal was not for a fair reason because there was no genuine redundancy situation, no genuine reorganisation, or that the claimant's request for her dismissal to take place was not “some other substantial reason” justifying dismissal in the circumstances. (The claimant said that the redundancy had been “engineered” by the respondent deliberately reducing her role from around June 2022 by, for example, excluding her from meetings relating to work previously part of her role).

b. That the dismissal was unfair because the respondent did not, as part of the redundancy process, look for other roles for the claimant.

c. That the dismissal was not fair because the respondent did not follow a fair procedure in carrying out the redundancy, particularly in relation to the consultation meetings.

d. That the dismissal was not fair in all the circumstances because the respondent did not investigate the claimant's grievance properly. (The grievance was about the redundancy situation and process).

[34]I take each of those allegations in turn. Allegation 33a.

[35]Dealing firstly with the allegation that there was no fair reason for the dismissal because there was no genuine redundancy situation or reorganisation amounting to “some other substantial reason”. This is a dispute of fact. Miss Amartey directed me to the notes of the consultation meeting on 5 April 2023 in the bundle which she submitted showed the claimant appeared to accept that there was a rationale for the redundancy situation. I take into account that what the law would require the Tribunal to do at the final hearing would be to assess whether the respondent had shown that there was a potentially fair reason for dismissal. The law is clear that when it comes to redundancy situations or reorganisations it is not for the Tribunal to second guess an employer’s commercial decisions. The Tribunal is Case No. 2408724/2023 8 however entitled to be satisfied that there is a genuine redundancy situation, and that the decision is made on proper information. That requires the Tribunal to have an understanding of how the respondent reached the decision.

[36]In this case, although at the consultation meeting on 5 April 2023 the respondent said that its executive leadership team had come to the decision to make the claimant’s role redundant, there was no explanation of how it reached that decision. The letter inviting the claimant to the first consultation meeting in January 2023 did not (so far as I could see) form part of the bundle. There was a suggestion that the rationale for the decision was set out in that letter but I did not have it in front of me.

[37]I need to take the claimant's case at its highest in assessing the prospects of success. She says there was no genuine redundancy situation and/or need to reorganise. I cannot say that there are no reasonable prospects of the claimant succeeding in relation to this allegation. I say that for two reasons. The first is that the burden is on the respondent, not the claimant, to establish the fair reason. The second is that there was not before me evidence as to how the decision to identify the claimant’s role as being redundant or in need of reorganisation was reached. I am not in a position therefore to say that there is no reasonable prospect of allegation 33a succeeding in relation to the first 2 asserted fair reasons for dismissal.

[38]The third potentially fair reason put forward by the respondent as justifying dismissal was that the claimant had, the respondent says, asked to be made redundant at the 5 April meeting. It says that was some other substantial reason justifying dismissal. The claimant accepted the notes of that meeting in the bundle were accurate in the sense that they reflected what she said at the meeting. She says, however that by 5 April 2023 she was desperate to leave so as not to lose her her new job. That meant her employment with the respondent needed to come to an end quickly. I accept that because of that she pushed for that final consultation meeting to take place as soon as possible. I have considered whether the fact that she did so and what she said at the 5 April meeting mean there is no reasonable prospect of her allegation that there was no “some other substantial reason” justifying dismissal succeeding.

[39]I have decided that I need to take all the circumstances into account, and that includes the circumstance that the respondent clearly knew that the claimant was desperate to end her employment so that she could take up the new job. I also take into account the claimant’s case, which as I say I have to take at its highest – that that crisis point (in a sense) had only been reached because the respondent had taken so long to deal with her grievance. The grievance meeting was on 24 February and the grievance outcome was not received until 30 March 2023. It was that delay (the claimant says) which led to her having to push for the meeting on 5 April and in effect having to say whatever the respondent wanted in order to make sure that her dismissal took place in time for her to start her new role. In essence, although not in the technical sense, what she says is that she had to do that because she was under duress to make sure that she got her employment situation sorted out.

[40]I remind myself that the burden of establishing there was some other substantial reason justifying dismissal is on the respondent. I bear in mind what was said in Romanowska about the rarity of making a decision without hearing evidence Case No. 2408724/2023 9 f rom the person making the decision to dismiss. Despite the evidence in the notes about what was said at the meeting on 5 April 2023, I find that I cannot say that there is no reasonable prospect of the claimant successfully arguing that this alternative substantial reason put forward by the respondent is not made out. I find that there is just enough doubt to mean striking out this allegation is not appropriate. Allegation 33b

[41]When it comes to the allegation that the respondent did not carry out a fair process because it did not look for other roles for the claimant, the respondent’s case is that it did send the claimant details of vacancies in February and March. There was some evidence that the respondent did look for other roles for the claimant. However, I accept the claimant’s submission that the evidence before me suggested the primary alternative opportunity arose on 9 January 2023 which was before the respondent had informed the claimant that she was being made redundant. I accept there was evidence in the bundle which supported the submission made by Miss Amartey that the respondent had been actively seeking to retain the claimant.

[42]However, the claimant's case was that there were other roles which were a match for her at least 70% or 80% which she was not offered. I must take that case at its highest and assume she could establish that was the case. One of the roles arose on 12 May 2023 and so after the dismissal had taken place. I accept Miss Amartey’s submission that a failure to offer an employee already dismissed for redundancy an alternative role which arises after their employment has ended does not render the dismissal unfair. The claimant's case, however, was that the respondent had “held back” that role and engineered matters so that the claimant would not be in a position to apply for it while still employed by the respondent.

[43]I must take the claimant’s case at its highest. I must assume that she can satisfy the Tribunal at the final hearing that there were suitable alternative roles which she was not offered during her employment and/or that the respondent “held back” roles so that they did not become available until after she had been dismissed. Based on that assumption, I do not find that there is no reasonable prospect of the claimant succeeding in arguing that the dismissal was unfair because the respondent failed to look for other roles for the claimant. Allegation 33c

[44]When it comes to the fairness of the redundancy process, I did not have evidence about the whole of that process, e.g. notes of the earlier consultation meetings. The respondent relied on the claimant’s own apparent acceptance at the meeting on 5 April 2023 that she was redundant and that the process was fair. I accept Miss Amartey’s submissions that the notes of the meeting on 5 April 2023 record the claimant accepting that there were no other roles available, that consultation had taken place and that she was genuinely redundant. I accept there is evidence that the respondent did carry out some consultation in the sense of holding meetings with the claimant.

[45]The issue is whether the notes of the meeting on 5 April should be taken at face value. The claimant’s case is that what she said at the meeting did not reflect what she really thought about the situation and should not be held against her. She says this was not a straightforward consultation meeting in a redundancy process Case No. 2408724/2023 10 where the claimant was waiting for an unknown outcome. Instead, the claimant was under pressure (she says because of delays by the respondent) to bring matters to a close because she was due to start her new role. Taking the claimant’s case at its highest, it seems to me I have to base my decision on the assumption that the claimant would satisfy the Tribunal at the final hearing that the notes should not be taken at face value. That being the case, a decision on the fairness of the process could only be made by hearing all the relevant evidence. I find I cannot say there is no reasonable prospect of allegation 33c succeeding based on the notes of the 5 April meeting alone. Allegation 33d

[46]The respondent’s case in essence is that the claimant withdrew her grievance (or at least indicated she no longer wanted to progress it) after 30 March 2023. The respondent says it was not a case of it not investigating the grievance properly but of it complying with the claimant’s request not to proceed with it. The claimant’s case is that she only said that she did not want the grievance investigated because she was desperate to end her employment so that she could take up the new employment. In support of her version of events, she points out that she did appeal the decision to dismiss her, albeit not until 21 April 2023. She says that the “crisis point” at the end of March was only reached in relation to the grievance because the respondent had taken so long to reach its decision (from the 24 February to 30 March 2023).

[47]It seems to me that that dispute of fact and the question of whether it rendered the dismissal unfair can only be decided by hearing evidence. I do not find I can say there is no reasonable prospect of the claimant satisfying the Tribunal as to her version of events at the final hearing, i.e. that she only said that she did not want the grievance investigated further because she was desperate for her employment to come to an end, and that that was a situation which the respondent had itself engineered (whether deliberately or due to inadvertent delay in dealing with her grievance. Summary

[48]The respondent’s application to strike out all or some of the claimant’s claim is refused. Employment Judge McDonald Date: 15 January 2025