Dr C Moloney v Rochdale Metropolitan Council and Governing Body of Oulder Hill Community School: 2410299/2019

EMPLOYMENT TRIBUNALS

Case No 2410299/2019

Between

Dr C MoloneyClaimant

Rochdale Metropolitan Council and Governing Body of Oulder Hill Community SchoolRespondent

Before

Employment Judge Feeney

Date 29 November 2021

JUDGMENT

[1]The judgment of the Tribunal is that: The claimant's claim of unfair dismissal is struck out as having no reasonable prospect of success. The claimant’s public interest disclosure claim is unaffected by this judgment and continues. RESERVED JUDGMENT

[2]The application to amend the claim to include a complaint (whether expanded or not) under section 47B of the Employment Rights Act 1996 is refused. In any event, that complaint has not been presented in time within the terms of section 48 of the Employment Rights Act 1996. Accordingly, the Tribunal has no jurisdiction to hear that complaint. It has no reasonable prospect of success, therefore, and it is struck out. The claim is otherwise dismissed.

REASONS

[1]This is a preliminary hearing to consider:(1) The respondents’ application for a strike out order or deposit order in relation to the claimant’s claim;

(2) The claimant’s application to amend the claim, so far as may be required; and

(3) The finalisation of the list of issues. That this was the agenda for this hearing was confirmed with me by the parties at the outset of the hearing.

[2]The hearing was conducted as a remote public hearing via the Cloud Video Platform (CVP).

[3]I was not invited to hear evidence by either party. At the conclusion of the submissions by Ms Quigley (for the respondents) and Dr Moloney (on her own behalf), I reserved my decision. I wished to give careful attention to the history of the matter and to the documents that had been placed before me. I did not consider that I could do justice to the issues before me by delivering an ex tempore judgment.

[4]I had before me at the hearing an electronic file of documents (the hearing bundle) comprising 399 pages plus an index of 2 pages, provided in advance, and which I had read as part of my preparation. References to that file appear in square brackets below. That file had been produced by the respondents because of a case management order to that effect made by Employment Judge Ainscough on 14 June 2021. The judge’s order (which was not reproduced in that file) made no requirement of the claimant to prepare a file, although there was in principle no reason to prevent her from preparing such a file.

[5]In addition, I had the following documents provided to me by the claimant on the day:(1) Letters from a consultant dermatologist dated 30 June 2021, 27 July 2021 and 11 August 2021 regarding the claimant;

(2) The claimant’s annotated response in red ink to the respondents’ response to the claimant’s further particulars (123 pages);

(3) The claimant’s latest case management agenda; and

(4) A letter dated 1 October 2020 from the 2nd respondent concerning the conversion of the school to academy status under an association with Star Academies.

[6]As this was a remote hearing, I did not have the hard copy case file available to me. I have subsequently been provided with a copy of Judge Ainscough’s order from the case file as I had not been able to access it from the electronic case file maintained on the Employment Tribunal’s Employment Case Management (ECM) system.

[7]I began to consider my decision on the afternoon of 3 September 2021 and over the course of the weekend of 4-5 September 2021.

[8]On 3 September 2021 and on 6 September 2021 the claimant emailed my hearing clerk in terms that gave me cause to reflect upon whether I should ask to see a lever arch file of documents to which the claimant had referred at the hearing and which she said she had sent to the Tribunal and to the respondent. I did not have a copy of that file, although I was uncertain whether it would contain material that was relevant to the limited issues that I had to decide at this preliminary hearing.

[9]I made inquiries as to the claimant’s file, but those inquiries did not reveal that the file was being held by the Tribunal administration. Accordingly, on 6 September 2021, I gave an instruction that the parties were to be written to in relation to the claimant’s file with a view to asking the claimant to provide a copy (ideally electronically, if possible) within 14 days. I set a “BF Date” (a date by which the Tribunal administration was to refer the case back to me) in accordance with the usual practice. Unfortunately, my instruction was not acted upon, with the result that the parties were not written to and a BF Date was not set on the system.

[10]By chance, when checking whether I had any work outstanding, I noted that there had been no referral to me in this case since my instruction of 6 September 2021. On 14 November 2021 I emailed the Tribunal administration to check the position. As I did not get a timely reply, I chased the matter. On 19 November 2021 I was advised that my instruction of 6 September 2021 had not been acted upon and that the case file was marked as “judgment awaited”, although this status had not been flagged to me, as would be usual when a judgment was outstanding. I gave a fresh instruction.

[11]On 22 November 2022 my fresh instruction was acted upon, which led to an understandably frustrated response from the claimant. With the assistance of the Regional Employment Judge, however, efforts were made to trace the claimant’s file and it was located. That file was provided to me on 24 November 2021. I have now been able to consider it. I gave fresh consideration to my decision on 25 and 27 November 2021, from which this judgment and reasons now result. The history of these proceedings

[12]Acas early conciliation commenced on 20 June 2019 and ended on 24 June 2019. The claimant named the prospective respondent as Rochdale Metropolitan Council only [1]. No issue has arisen from that.

[13]The claimant’s ET1 claim form was presented on 24 July 2019 [2-25]. The claim as originally presented named as respondents(1) Rochdale Metropolitan Council and

(2) The Governing Body of Oulder Hill Community School. The correct title of the 1st respondent is in fact Rochdale Borough Council, but nothing hangs upon that.

[14]Even though the claimant had an early conciliation certificate in respect of the 1st respondent, she did not provide an early conciliation certificate number for either respondent, indicating instead that her employer had already been in touch with Acas. In section 15 of the form, she explained the difficulty that she had had in entering her early conciliation certificate number. Again, nothing hangs on that.

[15]The claimant is Dr Catherine Moloney. The original ET1 claim form identifies the claimant as a Teacher of English employed between 1 September 2014 and 11 June 2019. The Tribunal understands Dr Moloney is a law graduate and qualified barrister (although now non-practising), with a PhD degree in English and a graduate teaching qualification.

[16]In section8.1 of the form the claimant indicated that she was complaining of unfair dismissal (including constructive dismissal). She stated that: “It is my contention that I was forced to leave my employment due to making disclosures re Health and Safety but there are issues of time.” For the background and details of her claim, at section

8.2 she referred to an attachment (an .rtf file) [14-25]. I have read that document with appropriate care.

[17]Although there was no indication in section 8 of the ET1 claim form that the claimant intended to bring a discrimination complaint, in section9.1 she implied that she was claiming discrimination and that by way of remedy she sought compensation and a recommendation. Section

9.2 set out in broad terms her expectations as to a potential remedy in compensation. In section 12 she indicates that she does not have a disability.

[18]The original particulars of the claimant’s claim are set out in some detail over 11 substantive pages [14-25]. As I indicated above, I have read that document with appropriate care. The particulars taken a narrative form of the kind that is not at all unusual when a claimant is a litigant in person and has not had the benefit of professional assistance in “pleading” the case. The Employment Appeal Tribunal discouraged the use of a narrative style of “pleadings” in C v D (HHJ Tucker, 17 September 2019), but I make no criticism of the claimant for setting out her original claim in the way that she did.

[19]The Tribunal administration acknowledged receipt of the claim on 12 August 2019 and gave notice of it to the respondents [26-27]. That notice referred to the ET1 containing a long narrative statement. It asked the claimant – if she were raising a claim of anything other than unfair dismissal – to set out the statutory basis of her claim with full details of incidents/actions and individuals she relies upon by 26 August 2019. The respondents were invited to present a response to the claim by 9 September 2019.

[20]By separate notice, also dated 12 August 2019, the Tribunal set the matter down for a case management hearing on 11 November 2019 by way of a preliminary hearing [28-29].

[21]The respondents presented their separate responses to the claim on form ET3 [40-46 and 47-53]. Although those responses are not dated, no issue is taken with the respondents’ compliance with the procedural requirements of them. Joint grounds of response were also presented [54-61]. Rochdale Borough Council Legal Services acted as legal representative for both respondents.

[22]The grounds of response addressed a claim of unfair dismissal only. The respondents had not received confirmation that the claimant wished to pursue any other complaints. The respondents allude to various “historic and tangential matters” in the claim [54]. They refer to alleged communications between the claimant and her trade union and sought further information as to those communications [54-55]. The joint grounds of response described the background to the claimant’s employment [55-60] and finally addressed the complaint of unfair dismissal [60-61].

[23]Although not required to, the claimant responded to the respondents’ joint grounds of response [62-72]. She also provided in tabular form a Schedule of Claims [73-76 and [77]. She also provided further particulars of protected disclosures [78-105]. This latter document mixes narrative, pleading and evidence (including the incorporation of email evidence) in a way that is understandable when originating from a litigant in person, but which is not always helpful to a respondent attempting to respond to a claim or to the Tribunal in the early stages of its case management of the claim.

[24]The upshot of this, particularly from the tabular Schedule of Claims, is that the claimant identified her complaints as being:(1) various unlawful detriments for making various protected disclosures (sections 43B and 47B Employment Rights Act 1996);

(2) automatic unfair dismissal by reference to the making of protected disclosures (section 103A Employment Rights Act 1996);

(3) disability discrimination (section 15 Equality Act 2010); and

(4) failures to make reasonable adjustments (sections 20-21 Equality Act 2010).

[25]In many respects, some of those complaints are overlapping to some degree or extent. They date from May 2015, continue into 2016-2018, and culminate with the claimant’s use of the grievance procedure, concluding with the claimant’s “dismissal” in May 2019 and an unsuccessful appeal against dismissal in June 2019.

[26]What appears to me from the selection of materials provided to the Tribunal for the present preliminary hearing is that the claimant tends to litigate her claim in combative correspondence with the respondents’ legal representatives, perhaps betraying a natural frustration with the litigation process, but surprising in someone who is a qualified barrister and who has herself worked in employment law advice and litigation. While again that might be understandable in a litigant in person, such an approach serves only to obscure the essential elements of the claim rather than reveal or illuminate them. It also risks the claim growing uncontrollably without reference to matters such as time limitation or the formal requirements of amendment. An example of such correspondence from 18 March 2020 appears in the electronic bundle at [106-109].

[27]For completeness, and to ensure that the claimant’s position is fully understood, I also refer here to her correspondence with the Tribunal in October 2019 regarding her health, in which she also refers to parallel proceedings arising from her employment (including personal injury litigation) and her concerns about the respondents’ conduct of the Tribunal proceedings [110].

[28]Although a copy of the HMCTS case file for this claim is not available to me as part of a remote hearing – and there is no reason why it should be – I can see from the material before me that on 8 November 2019 the then Regional Employment Judge for the Northwest region, Judge Parkin, referred to “[e]xtensive recent correspondence in this matter from the claimant”. Judge Parkin intimated that there was no need to copy the Tribunal into the claimant’s correspondence with the respondents or the documents disclosed between the parties. Judge Parkin postponed the case management hearing listed for 11 November 2019 in the light of the claimant’s health revelation.

[29]On 22 November 2019 the respondents applied under rules 37 and 39 for a strike out order (or alternatively, a deposit order) in relation to the claimant’s complaint of unfair dismissal [113]. As a result, a public preliminary hearing was listed for 18 February 2020 [114-115].

[30]In turn, the claimant wrote to the Tribunal on 14 January 2020 and 23 January 2020 seeking a postponement of the preliminary hearing. That was refused by Judge Parkin on 27 January 2020 [116-117] in terms that speak for themselves.

[31]On 18 February 2020 the claimant set out her written response to the respondents’ application for a strike out order [118-121].

[32]On 18 February 2020, in a judgment signed on 19 February 2020 and sent to the parties on 25 February 2020, Employment Judge Feeney struck out the complaint of unfair dismissal as having no reasonable prospect of success, but she noted that the claimant’s public interest disclosure claim was unaffected by the judgment and continues. The claimant had not attended the preliminary hearing and she was not represented at it. See [124-125]. It appears that her non-attendance at the appointed time was inadvertent.

[33]Judge Feeney also case managed the claim at the preliminary hearing on 18 February 2020. Her Case Management Summary and Orders appear at [126- 130]. Judge Feeney makes reference to the “pleadings” at paragraphs (2)-(9) [126-127]. Judge Feeney required the claimant to provide further particulars of her protected disclosure claim and of her discrimination claim (with an application to amend) by 3 March 2020.

[34]The claimant then corresponded with the Tribunal on 25 February 2020 [131- 132]. She took issue with the Tribunal’s management of her case, but she undertook to comply with its Orders.

[35]On 11 March 2020, Judge Feeney treated that correspondence as potentially an application to reconsider her judgment of 18 February 2020 and indicated what the judge required of the claimant, if so [133]. An application for reconsideration did not in fact result and Judge Feeney’s strike out of the unfair dismissal complaint stands.

[36]What appears to be the claimant’s draft particulars of a disability discrimination claim appear at [134-137].

[37]Further to Judge Feeney’s Orders, the respondents set out their position on 18 March 2020 in two letters dated 17 March 2020 [138-144]. They opposed any amendment of the claim to include a complaint of disability discrimination. In separate tabular form, the respondents also set out in a schedule their understanding of the claimant’s claim regarding protected disclosures and they sought further information relating to(a) the disclosures and

(b) the detriments alleged or relied upon [145-158].

[38]That appears to have led to the claimant annotating the respondents’ tabular schedule in red, referring the respondents to previous communications as part of the legal proceedings and/or to specific pieces of documentary evidence disclosed or sought [145-158].

[39]Separately, on 18 March 2020, the claimant emailed the Tribunal (seemingly without copying the respondents) [159-162]. That email took issue with various aspects of the Tribunal’s management of the case and with the respondents’ communications with her.

[40]It is pertinent to note that from about this time the Tribunal’s ability to conduct normal judicial business began to be adversely affected by the Covid19/Coronavirus pandemic. That might explain the gap in the history of these proceedings (as it appears to me) between 18 March 2020 and 4 May 2020.

[41]On 4 May 2020, Judge Feeney made further case management orders [163- 165]. Among other things, the claimant was required to complete a Scott Schedule (the template for which was provided by the judge) by 29 May 2020 and the respondents were required to provide any information as a result by 26 June 2020. A preliminary hearing was listed for 18 September 2020 to consider:(a) whether the claimant should be allowed to amend her claim;

(b) what the issues are; and

[42]The claimant replied to the Tribunal on the same date and referred to (understandably) difficult personal and family circumstances [166-177]. Unfortunately, appended to her email were earlier communications with the Tribunal or between the parties.

[43]More substantive correspondence between the claimant and the Tribunal then resulted on 18 May 2020 [178-179, 185]. Again, unfortunately, that correspondence largely addresses the claimant’s discontent with the conduct of the Tribunal and of the respondents. Nevertheless, the claimant had completed the Scott Schedule by hand [180-184].

[44]That did not appear to satisfy the respondents. On 11 June 2020 the respondents applied under rule 38 for an Unless Order in respect of the claimant’s provision of further and better particulars [186-188]. They also asked for the preliminary hearing of 18 September 2020 to be relisted. The essence of the application was that(i) the handwritten annotations to the Scott Schedule did not meet the requirements of Judge Feeney;

(ii) that the claimant providing the respondents with three lever arch files of documents, without more, did not serve to particularise her claim; and

(iii) the parties were at an impasse.

[45]The claimant then took issue with that correspondence and opposed the application for an Unless Order [189-190].

[46]On 25 June 2020 the claimant engaged directly with the respondents [191- 197] in a way that reproduces a long email thread; takes issue with the respondents and their quest for further particulars; but takes the particularisation of the claim no further forward. In further correspondence on 26 and 29 June 2020 the claimant refers to a family bereavement [198-199]. It can be gleaned from these communications that the claimant felt unable to assist the respondents or the Tribunal further.

[47]On 10 July 2020 Regional Employment Judge Franey (who had succeeded Judge Parkin as Regional Employment Judge for the Northwest upon the latter’s retirement) converted the preliminary hearing listed for 18 September 2020 into an in-person hearing [200].

[48]On 14 July 2020 the respondents asked Judge Franey to clarify the position as to its request for an Unless Order [201-204]. See also the claimant’s email of the same date [205]. A medical report regarding the claimant’s health, dated 14 July 2020, also appears at [206-207].

[49]For one reason or another, that passage of correspondence led to the postponement on 30 July 2020 of the preliminary hearing listed for 18 September 2020 [215]. On 25 August 2020 it was relisted for 17 December 2020 [216-219]. The claimant prepared an agenda for that hearing in a narrative style [220]. Her concerns were largely to do with documents and witnesses, but also the medium by which materials were to be provided.

[50]That preliminary hearing did take place on 17 December 2020 before Employment Judge Johnson by telephone. The claimant attended in person and, as previously, the respondents were represented by Ms L Quigley (counsel). Judge Johnson’s Case Management Summary and Orders appear at [225-235] and were sent to the parties on 27 January 2021.

[51]As a result of Judge Johnson’s case management, the final hearing was listed for 10 days commencing on 13 June 2022 [238-239]. The judge set a provisional hearing timetable. He listed a further telephone hearing for case management purposes on 14 June 2021 [236-237]. He set out the claims being brought. He recorded that the claim of ordinary unfair dismissal had been struck out (section 98). The claimant confirmed that she did not rely upon an unfair dismissal by reason of making protected disclosures (section 103A). Her claim thus relied only on section 47B (detriments for making protected disclosures) and that was the only claim that would be heard at the final hearing. She also confirmed that she did not wish to apply to amend her claim to include complaints of disability discrimination.

[52]As Judge Johnson recorded it: “The claim is essentially about Dr Moloney’s alleged treatment by the respondent following two protected disclosures which she made in 2015, but she says she repeated on numerous occasions until she commenced a lengthy period of sickness absence in November 2017 following a series of detriments, with the absence ultimately leading to her dismissal in 2019.”

[53]Judge Johnson then defined the issues between the parties which potentially fell to be determined at final hearing, but subject to clarification and finalisation. A “framework of issues” was identified and set out with some obvious care and particularity at paragraph (12) of the Case Management Summary at [227- 230]. Judge Johnson identified issues under the following headings:(1) Time limits/limitation;

(2) Was there a protected disclosure?

(3) Did detriments take place?

(4) Is there a connection between the protected disclosures and the detriments identified? and

(5) Remedy.

[54]Judge Johnson then made Orders for further information and an amended response by reference to the framework of issues.

[55]The claimant’s purported compliance with Judge Johnson’s Order for further information to be provided by her by reference to the framework of issues resulted sometime in January 2021. It appears at [240-287] – that is, some 48 pages. As before, the further information is in narrative form. It reads more like a witness statement than further information, but that is not unusual when a litigant in person is the author of further particulars, although surprising given the claimant’s legal background. It is not paginated nor are there paragraph numbers, although it is otherwise relatively easy to follow.

[56]Sometime in February 2021 the respondents responded to the claimant’s further particulars [288-380] – that is, some 93 pages and 501 numbered paragraphs. The respondents’ position was that:(a) it was unclear in places what was being relied upon as a disclosure and what was being relied upon as a detriment;

(b) the respondents were unable easily to identify which school pupils were being referred to by initials (although accepting the need to safeguard their identities);

(d) the claim had been expanded via the further particulars, giving rise to a need for permission to amend and/or further time limit questions;

(e) all complaints prior to 21 March 2019 were prima facie out of time; and

(f) there were no alleged detriments from the commencement of sick leave on 28 November 2018 until the claimant’s dismissal.

[57]The electronic file reveals further correspondence between the parties and with the Tribunal in March, April and May 2021, with which I am not immediately concerned for the purposes of this preliminary hearing. I note in particular Judge Johnson’s correspondence dated 14 May 2021 [392-394]. This preliminary hearing

[58]The matter comes before me because of the preliminary hearing conducted by