Mr O Oyesanya v The Pennine Acute Hospitals NHS Trust: 2412080/2013

EMPLOYMENT TRIBUNALS

Case No 2412080/2013

Between

Mr O OyesanyaClaimant

The Pennine Acute Hospitals NHS TrustRespondent

Before

Employment Judge Slater

Date 16 September 2019

REASONS

FOR CASE MANAGEMENT ORDER MADE ON 1 MARCH 2017 AND REASONS FOR JUDGMENT SENT ON 28 MARCH 2017

Preliminary

[1]In these reasons: 1.1. “the Judgment” means the judgment sent to the parties on 28 March 2017; 1.2. “Schedule A” means Schedule A to the Judgment 1.3. other schedules identified by letters of the alphabet refer to the corresponding schedule to the Judgment; 1.4. “ERA” means the Employment Rights Act 1996; 1.5. “EqA” means the Equality Act 2010; 1.6. “FTER” means the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002; 1.7. “the bundle” means the bundle prepared for the final hearing starting on 1 March 2017; 1.8. “the Further and Better Particulars” or “FBPs” means the document appearing at pages 161 to 460 of the bundle; 1.9. “the September 2014 CMO” means the case management order made by Employment Judge Slater on 24 September 2014; 1.10. “the Refusal Decision” means the decision by Employment Judge Ryan on 9 December 2016 to refuse the claimant’s application for permission to rely on a supplemental witness statement; and 1.11. “the List of Issues” means the list of issues prepared by the respondent dated December 2016 Matters in dispute

[2]On 1 March 2017 the tribunal began what was supposed to be the final hearing of the claimant’s claim. At the outset of the hearing the claimant made an application to adjourn the hearing. We refused the application.

[3]Over the course of the ensuing days, the claimant made the following disputed applications: 3.1. to amend his claim to include a complaint of victimisation; 3.2. to amend his claim, and in particular his complaint under FTER so as to allege that he was treated less favourably than Rita Bhalla was treated; 3.3. for permission to give evidence in chief about matters not covered in his witness statement, which would be relevant to the allegations referred to in Schedules B and C; 3.4. for permission to ask questions in chief of witnesses about matters not covered in their witness statements; 3.5. for permission to rely on a supplemental witness statement; 3.6. for specific disclosure of patient notes of Patient L, Patient Z and other patients; 3.7. for specific disclosure of further rotas; 3.8. for a witness order for: 3.8.1. Mr Amu 3.8.2. Dr Maniaz 3.8.3. Edna Smith 3.8.4. Cathy Trinick and 3.8.5. Dr Thirwell

[4]During the course of the claimant’s submissions, it became clear that the claimant wished the tribunal to adjudicate on a great many allegations that did not appear in the List of Issues. This led us to spend several days trying to clarify with the claimant how he was putting his case in relation to those allegations. We indicated on the second day of the hearing that, once the claimant had been given the opportunity to clarify those allegations that did not appear in the List of Issues, we would consider whether any of those allegations should be struck out on the ground that they had no reasonable prospect of success.

[5]As the claimant continued to talk about the way he was putting his case, it appeared from time to time that what the claimant was actually doing was seeking to introduce allegations that were not even in the FBPs. In relation to these allegations, the tribunal had to decide whether an amendment was required and, if so, whether it should be granted.

[6]The parties’ submissions regarding these issues flushed out a further preliminary issue, namely whether paragraph 130 of the claimant’s witness statement was admissible. That paragraph stated that the claimant made protected disclosures as set out in his FBPs. The respondent’s position was that that paragraph was wholly unsatisfactory because of its attempt to import large sections of the FBPs wholesale into the evidence without setting out any of the factual detail. This was a point raised by the respondent at a previous preliminary hearing, without having been adjudicated.

[7]One issue recorded in the List of Issues was whether or not the claimant would be required to amend his claim in order to rely on protected disclosures and to allege detriments which, in each case, had been specifically alleged for the first time in the FBPs. Was the claimant introducing new allegations or merely providing further particulars of existing ones? The parties agreed that this question should be determined at the outset of the hearing along with the claimant’s applications. Procedural history

[8]By a claim form presented on 30 October 2013, the claimant raised a large number of complaints including race and age discrimination, detrimental treatment on the ground of being a fixed-term worker, and detriment on the ground of protected disclosures.

[9]The way in which the complaints were expressed in the claim form were vague and lacking in detail. For example, 9.1. At paragraph 17, Box 8.2, in relation to the termination of his employment, he alleged: “a) other people in similar or related circumstances; or b) different i) race, colour, ethnicity, tribal and/or national origin and/or ii) age were treated differently”; 9.2. At paragraph 18, he contended that he had been “treated differently by virtue of fixed-term tenure; discriminated against directly and indirectly on account of [the same protected characteristics as above] and suffered other detriments stated herein and below.” 9.3. He claimed at paragraph 18 of Box 9.2, remedies for “Dismissal for making a protected Disclosure; Victimisation; or in the alternative, aiding my victimization for making a protected Disclosure;….” 9.4. In paragraph 7 of Box 15, he alleged, “…I was not afforded the right…b) not to be dismissed for making a protected disclosure (ERA s103A); 9.5. In paragraph 8, he alleged, “RACE: Treating me differently directly and indirectly from other employees holding similar positions [with different protected characteristics] who were neither dismissed nor subjected to the other detriments was discriminatory…” 9.6. He made a similar allegation of age discrimination at paragraph 9; 9.7. At paragraph 10, he alleged, “DISCRIMINATORY UNDERTONES: I experienced discriminatory and undermining behaviour under the Respondent and am aware of others not of my [protected characteristics] who were not dismissed or subjected to the other detriments 9.8. At paragraph 15, after the word, “WHISTLEBLOWING”, the claimant contended that his “dismissal or refusal to extend was partly a reaction to the fact that the Respondent discovered that I had whistleblown in a previous post.”

[10]Not surprisingly, the respondent requested further particulars of those allegations. By the time the case reached a preliminary hearing on 12 February 2014, the claimant had not provided that information. Employment Judge Porter therefore ordered him to provide further information which included: 10.1. (paragraph 2.3) “what exactly is the protected disclosure relied upon by the claimant in his claim for detrimental treatment/dismissal arising from making a public interest disclosure (including what was the qualifying disclosure, to whom it was made, and when it was made)”; and 10.2. (paragraph 2.5) “what is the alleged discriminatory and undermining behaviour referred to at point 10 of Box 15 of the claim form and/or what (if any) alleged discriminatory treatment is relied upon (other than the termination itself)…”.

[11]The claimant’s reply to that order was 14 pages long. He outlined a series of protected disclosures in to two categories, one to his previous employer, the second category being to the respondent. This document still left the respondent guessing about what case it had to meet. For example, 11.1. Under the heading, “Protected Disclosure 2: The Respondent”, he asserted, “…I reminded it of its legal obligations under Clinical Governance, to ensure the safety, quality and cost-effectiveness of health care delivery to its patients.” He did not indicate on what occasions he had given such a reminder, or which individuals he had reminded. 11.2. Under the same heading he stated "I was reasonably and genuinely concerned that the resulting staffing crisis would further endanger the health and safety of patients. I informed the respondent of my reasonable and genuine concerns". There was no detail as to what those concerns were, whom he informed, or when or how he informed them. 11.3. At page eight of the document he repeated, "I reminded the respondent of its legal obligation, specifically its contractual duty of trust and confidence including but not limited to: breach of contract of employment, unfair dismissal; wrongful dismissal; procedural unfairness and the possible effect on worsening the desperate staff shortage and increased risks of health and safety of patients (and possibly staff) being endangered; which if unchecked could lead to further endangering of the health and safety of others in future. I appealed to the respondent verbally and in writing, my appeal and grievance were ignored". The phase, “including but not limited to” left the respondent wondering what other disclosures of wrongdoing the claimant might subsequently allege had been made.

[12]Addressing paragraph 2.5 of Employment Judge Porter’s order, the claimant’s document expanded on his allegations of discriminatory and undermining behaviour. He divided the allegations into categories. The first two were “Rudeness and insubordination” and “Rudeness and undermining behaviour”. Within these categories there was no indication of who had been rude, what they had said or done, or when it had happened. Paragraph (c), beginning “Unfounded allegations about me by junior medical staff and/or nursing/midwifery staff…” was accompanied by the narrative account of one incident in paragraph (d). Rather frustratingly, however, that paragraph was prefaced, “For example”, hinting at further allegations to come.

[13]On 12 June 2014 the claimant sent the respondent a long list of questions purporting to be a statutory questionnaire under EqA. Among the questions were requests for a considerable amount of statistical data, including: 13.1. a list of the names of all consultants in all specialities employed by the respondent at North Manchester and Bury in the past 10 years; 13.2. classification and sub-classification of all those named individuals into groups defined by race and nationality 13.3. the age of each named consultant 13.4. like information about all the respondent’s consultants on one-year fixed-term appointments and 13.5. like information about the respondent’s consultants in obstetrics and gynaecology.

[14]Clarification of the claim was ventilated again at a further preliminary hearing on 13 June 2014 before Employment Judge Sherratt. The respondent was given an opportunity to request further information and the claimant was given a deadline by which to respond.

[15]In due course the respondent made a focused and precise request for further information by letter dated 27 June 2014. The claimant did not reply.

[16]The claimant’s questionnaire was answered on 14 August 2014. The respondent was able to provide statistical information based on ethnic and monitoring. They were not, however, able to go back 10 years and they could not disaggregate the North Manchester and Bury data from the Trust-wide statistics

[17]The respondent applied to strike out various parts of the claim. The case came before Employment Judge Slater on 4 September 2014. During the course of the oral argument, the claimant told Employment Judge Slater: 17.1. that he could not yet provide the information that he had been ordered to provide in relation to his claim, because he was awaiting the respondent’s replies to his questionnaire; and 17.2. that he had not provided all the detail requested because he did not wish to give away his case.

[18]In her subsequent summary of the hearing, Employment Judge Slater expressed her concern about the claimant’s reluctance to set out his case. Nevertheless she allowed the claim to proceed. She went to considerable lengths to record the claim as she understood it. Her case management order (the 14 September 2014 CMO) listed the various causes of action. Under the heading of “automatic unfair dismissal”, at paragraph 12, the order recorded (with our emphasis): “The claimant relies on a protected disclosure to a former employer, Forth Valley NHS Trust, in a conversation on 18th August 2011. He also relies on a series of disclosures to Mr Amu and others at the respondent Trust including a letter to Mr Amu on 26th July 2013, an email to Mr Amu before that letter and telephone conversations with Mr Amu and others. The claimant has been ordered to provide further particulars of the disclosures to the respondent.”

[19]Employment Judge Slater also recorded a complaint that the claimant had not been paid for additional shifts he had worked. There was nothing in her summary that suggested that the claimant sought damages for the inconvenience of being required to work the shifts in the first place.

[20]The claimant was ordered to provide further particulars, not just of his alleged protected disclosures but also of the various ways in which the claimant claimed to have been detrimentally treated. Paragraph 2.3 ordered the claimant to describe any actual comparator on whose treatment he relied for the purpose of his discrimination complaint. Paragraph 2.5(c) required the claimant to identify the “comparable permanent employee” for the purposes of his FTER complaint.

[21]There was nothing in the record of the hearing in front of Employment Judge Slater that gave details of particular incidents of discriminatory or detrimental treatment, to the exclusion of other such incidents.

[22]The 4 September 2014 CMO included an order that witness statements should be exchanged and that they must be “full and complete” (with original bold type). It must have been clear to the claimant on reading that order that his witness statement had to contain all his evidence and that he could not expect to be able to expand on it at length in his oral evidence.

[23]On 9 December 2014 Employment Judge Slater made an Unless Order requiring the claimant to comply with the 4 September 2014 CMO. The Unless Order crossed with a lengthy application by the claimant for specific disclosure of documents. His application again proceeded on the footing that he should not be required to set out his case until the respondent had disclosed the documents he wanted. Employment Judge Slater caused a reply to be sent on 10 December 2014, refusing the claimant’s application and reminding him of the need to set out his case.

[24]The FBPs were provided by the deadline. They now form pages 165 to 457 of the bundle. Mr Allen, an experienced solicitor who represents the respondent, described the 297-page FBPs as the longest that he had ever seen. Here are some features of the FBPs that are relevant for our purposes: 24.1. Pages 166 to 296 (titled, “Section 2.1”) alleged that the claimant had made sixteen different alleged protected disclosures, each allegedly made to multiple recipients, resulting in some 71 protected disclosures altogether. Almost all of them were alleged to have been made in a telephone call followed by a face-to-face conversation. In most cases the alleged disclosures were all said to have been made separately to the same four individuals. 24.2. Although the claimant described at some length the various incidents about which he allegedly made the disclosures, there was virtually no detail in the FBPs about the dates of the conversations or the words he spoke to convey the information about these incidents. 24.3. There were thirty-three alleged whistleblowing detriments spread over 50 pages. Separate blocks, each of approximately 50 pages, alleged more or less identical detriments in relation to race, age and fixed-term status. Some of the alleged detriments were still vague and needed substantial clarification, which ultimately took place over two days during the hearing before us. 24.4. At what are now pages 326, 368, 409 and 440 of the bundle, the FBPs advanced an allegation of detriment headed, “Insufficient issues about conduct being highlighted and/or escalated”. The detrimental actions were alleged to have taken place on “September 2012; Oct/Nov 2012” (This was the allegation that we refused the claimant permission to amend and ultimately struck out.) 24.5. The FBPs, at pages 321 (and repeated in various other pages), also contained an allegation headed, “Generating unnecessary complaints”. Under this heading, the relevant dates were stated to be “Oct/Nov 2012; April 2013 till June 2013”. 24.6. At pages 340, headed, “The (wrong) way that complaints [etc] were handled”, the dates were said to be “Sept 2012; October/November 2012; February 2013; March 2013; April 2013; July 2013.” The narrative did not identify the complaints or other matters that had been badly handled. 24.7. At page 341 headed, “Undermining”, the FBPs alleged that the claimant had been badly treated in “September 2012; Oct/Nov 2012; February 2013; April 2013; July 2013”. The FBPs did not describe the undermining behaviour, but merely stated that “Examples are detailed in 2.1”. Section 2.1 of the FBPs was 131 pages long. 24.8. The FBPs identified only one comparator for the purposes of his complaints under EqA and FTER. The comparator’s name was Ms Amanda Jones. Repeatedly throughout the FBPs, the claimant maintained his stance that he was limiting his case to one comparator because of what he perceived as the respondent’s incomplete and evasive replies to his questionnaire. 24.9. At page 451, the FBPs claimed payment for additional shifts that the claimant had worked. He did not claim damages for breach of contract and, in particular, did not claim additional compensation for the inconvenience of having had to work those shifts in the first place. 24.10. According to the FBPs, Mr Amu, the respondent’s clinical director, was a recipient of most of the claimant’s protected disclosures and the alleged perpetrator of many of the detriments.

[25]On 13 May 2016 Employment Judge Ryan heard a further attempt by the respondent to have the claim struck out. He refused the application and listed the case for a 15-day hearing beginning on 27 February 2017. The 9-month gap between listing and the hearing date was typical of listing arrangements at the time. Paragraph 3.5 of Employment Judge Ryan’s order set a date for the exchange of witness statements. It continued: “The witness statements must set out all the facts a witness wishes to relate to the tribunal.”

[26]At paragraph 4 onwards, the record of the hearing set out some observations intended “to reinforce to the parties the importance of proper preparation for the forthcoming hearings”. The claimant was warned “in the strongest possible terms that any further failures to comply with the orders of the tribunal will be very likely to result in the granting of unless orders.” He was reminded “that if he has difficulty in complying with an order he may apply to the tribunal, with good reason, for an extension of time.” Paragraph 8 recorded the employment judge’s expectation that the parties would cooperate to prepare a list of the legal and factual issues in the case.

[27]As ordered by the tribunal, the respondent sent its list of documents to the claimant in May 2016. In August 2016, the respondent provided the claimant with copies of the documents themselves. There is a dispute as to whether the claimant received the documents – or ought to have received them – at that time. In any event, the respondent re-sent the documents to the claimant in September 2016.

[28]At some point since August 2016 (we could not at this stage reliably find when this happened) the claimant read the respondent’s documents and saw a reference to Ms Rita Bhalla. At around about this time (and again we have no precise dates) the claimant discovered that Ms Jones, his chosen comparator, had retired. Her retirement came some time after the claimant’s own employment with the respondent had terminated. Misunderstanding FTER, he thought that he could not compare himself to a person who was not an employee of the respondent at the time of the hearing. He therefore thought it would assist his claim to introduce Ms Bhalla, a serving employee, as a comparator. He did not, however, inform the tribunal or the respondent of his intention to advance his case in that way.

[29]On 11 October 2016 the matter came back in front of Employment Judge Ryan who made an Unless Order for the exchange of witness statements. The order also set out a hearing timetable which provided the sequence in which the claimant’s and then the respondent’s witnesses would be called. At paragraph 3 of his case management summary, Employment Judge Ryan observed that, with the FBPs in their current form, “this claim is not capable of being managed and heard properly in accordance with the overriding objective.”

[30]Witness statements were in due course exchanged. Among the respondent’s witnesses was Mr Amu. In his witness statement Mr Amu confirmed that the claimant had raised concerns with him about Caesarean sections, although gave a different context to that set out in the FBPs. He explained many of the incidents of which the claimant now complains. The claimant had been expecting a witness statement from Ms Trinick, but the respondent’s witness statements did not include one.

[31]The claimant’s witness statement at paragraph 130 stated that the claimant had made the protected disclosures as described in the FBPs. The paragraph gave hardly any more detail than that. On reading it, the respondent’s solicitor was concerned that the paragraph was purporting to incorporate 131 pages of allegations about protected disclosures and confer on those allegations the status of evidence-in-chief. At the same time, it still left the respondent guessing as to the detail of when the telephone and face-to-face conversations had happened, or any background information that might enable the claimant’s evidence to be effectively tested or the respondent’s witnesses to answer it. Mr Allen was particularly concerned about how he should cross-examine the claimant on paragraph 130. Should he take the claimant through each and every alleged protected disclosure? The clear danger of such an approach would be to elicit further detail that should have been disclosed at a much earlier stage. Or would it be sufficient to address such a sweeping piece of evidence as paragraph 130 with questions in broad-brush terms?

[32]On receipt of the claimant’s witness statements, and in accordance with Employment Judge Ryan’s wishes, the respondent prepared a list of issues to be determined by the tribunal (“the List of Issues”). In an effort to avoid ambushing the claimant with procedural points at the final hearing, the respondent’s solicitors divided the List of Issues into two parts. The first part contained the allegations which, in the opinion of the respondent’s solicitors, appeared to reflect some evidence contained in the claimant’s witness statements. The second part (“Appendix 2”) referred to allegations which, on reading the claimant’s witness statements, appeared to the respondent to be unsupported by evidence. They drew attention specifically to paragraph 130 and the difficulties it might cause.

[33]The respondent’s attempt to assist the tribunal prompted the claimant to apply for permission to rely on a supplemental witness statement to plug the gaps in his case. His application was heard on 9 December 2016. Employment Judge Ryan refused the application, giving his reasons for the Refusal Decision as follows: “5. In summary I consider that the prejudice to the claimant is outweighed by that to the respondent. There are multiple disputes of fact in these proceedings. The claimant is seeking to raise matters that go back into 2011. It is clear that many of the claimant’s allegations of detriment are out of time in any event. He will have to seek extensions of time from the tribunal unless he can establish acts extending over a period. These points serve to reduce the effect of the prejudice upon the claimant. These proceedings having been continuing since 2013. The claimant, though a litigant in person, is entirely the author of his own misfortune. Moreover he is an experienced and intelligent litigant in person. Throughout the proceedings he has known what was and would be required of him and he has simply failed to comply. Indeed, he volunteered that the gaps in his witness statement were entirely his own fault. 6. There would be considerable prejudice to the respondent if the claimant were permitted to serve a further statement. He would be able to attempt to fill the gaps in the evidence contained in his witness statement having sight of and full knowledge of the evidence already tendered in witness statements by the respondent's witnesses. Moreover, these considerations are in the context of a claimant who has had to seek relief from sanction on two occasions having had unless orders made against him. One such was relief from sanction which I granted in relation to his failure to exchange witness statements at a much earlier stage. 7. Finally, upon consideration of the matters that the claimant had not included in his witness statement, which were helpfully summarised in Appendices 2 & 3 to the list of issues that Mr Allen had prepared, I identified a number of matters which the claimant could legitimately have added to the list of issues even without being given an opportunity to provide a further statement. This is because Mr Allen accepts that the respondent has already been able to set out its evidential case in answer to those assertions. Insofar as the additional matters include allegations of protected disclosures Mr Allen also agreed that where there were documents recording or repeating the disclosures allegedly made then there would be written evidence before the tribunal upon which the claimant might rely. The orders given below are intended to reflect these considerations and to direct the parties to be in a position to put before the tribunal at the final hearing a list of issues appropriately amended to reflect these decisions.”

[34]Paragraph 10 of the 9 December 2016 order supplemented the Refusal Decision and went some way to mitigating any harsh effects: “On or before 16 December 2016 the claimant shall notify the respondent of any documents which he contends contain evidence of the disclosures alleged and set out in Appendix 2 to the List of Issues.”

[35]In other words, the tribunal was not taking the respondent’s List of Issues for granted. Nor was it agreeing with the respondent’s view that, just because an allegation was not referred to in the claimant’s witness statements, it was necessarily doomed to fail. The respondent was the required by paragraph 11 to amend the List of Issues in the light of any documents notified by the claimant in compliance with the above order. At the hearing itself the claimant drew the respondent’s attention to a document that supported one of his Appendix 2 allegations. This caused the respondent’s solicitor to amend the List of Issues. Between the date of the preliminary hearing and the start of the final hearing the claimant did not notify the respondent of any other documents in support of his claim.

[36]At the preliminary hearing there was a discussion about whether Ms Trinick would be called as a witness. The respondent’s solicitor explained that Ms Trinick had left the respondent’s employment after a long period of sickness absence. It was agreed that, if the claimant wished to call Ms Trinick as a witness, he would send a letter to the respondent’s solicitors, who would then forward the letter to Ms Trinick. If, on receipt of the letter, Ms Trinick did not cooperate, the claimant would have the option of applying for a witness order. The claimant did not send any such letter to the respondent after the hearing.

[37]By notice dated 23 January 2007 the claimant appealed against the Refusal Decision. The appeal was considered by His Honour Judge Shanks in accordance with rule 3(7) of the Employment Appeal Tribunal Rules 1993. In a letter dated 21 February 2017 the claimant was informed that his appeal would not be permitted to proceed. In the learned judge’s opinion, “None of the points raised by the [claimant] have any merit at all” and “The case should proceed as scheduled on 27 February 2017.”

[38]Undeterred by His Honour Judge Shanks, the claimant exercised his right under rule 3(10) to an oral preliminary hearing. The claimant was asked for his unavailable dates during the window April to July 2017. In the meantime, the claimant asked the tribunal to postpone the 15-day hearing to await his appeal. His request was considered by Regional Employment Judge Robertson, who rejected it. The grounds for refusing the postponement were, essentially, fourfold. First, the EAT appeared to have taken a dim view of the merits of the appeal. Second, it would take many months to relist the hearing. Third, there was a danger that the delay could cause memories to fade. Fourth, the case was already extremely long-running.

Relevant law

[39]As at the time of preparing these Reasons, the outcome of the appeal preliminary hearing is yet unknown.

[40]For reasons outside the parties’ control, the final hearing could not start on 27 or 28 February 2017 and one further date in the middle of the allotted window had to be vacated. Three of the 15 days were therefore lost. Regional Employment Judge Robertson notified the parties of the altered time allocation in advance of the hearing. On receiving this news, the claimant informed his witnesses that they would not be giving evidence during the first week (1 to 3 March 2017).

[41]The parties attended on 1 March 2017. No sooner had the tribunal introduced itself than the claimant immediately made an application for the hearing to be adjourned. The grounds for the claimant’s application were: 41.1. He wished to have an opportunity to pursue his appeal against the Refusal Decision before the hearing started. On 28 February 2017 a barrister acting under the ELAAS scheme had discussed the case with him and advised him that there could be potential to advance further grounds of appeal against the Refusal Decision, based on the way in which Employment Judge Ryan exercised his discretion. 41.2. His witnesses had informed him that they were unable to give evidence during the second week (6 to 10 March 2017). When asked whether the witnesses would be able to give evidence on 2 or 3 March 2017, the claimant initially stated that they could not do so. He later told us that he expected that they would not be able to give evidence because of their other commitments. At a later stage in the hearing, the claimant said that he had checked and that they had all now made alternative arrangements so that they could not give evidence during the first week.

[42]Following the parties’ oral submissions on the first day, we made enquiries of the tribunal listing office. It transpired that, were the hearing to be adjourned altogether, it would be unlikely to be re-listed until February 2018. The Cardiff case

[43]This is not the claimant’s first claim to an employment tribunal. A previous claim against South London Healthcare NHS Trust resulted in an unsuccessful appeal to the Employment Appeal Tribunal (UKEAT 0335/13).

[44]He has also brought a claim to the Employment Tribunal in Cardiff resulting in a number of hearings there. In May 2011 a hearing had to be postponed because the claimant had not prepared his witness statement. On 14 November 2011, the claimant was ordered to pay costs by a tribunal chaired by Employment Judge Harper. The reason for the costs order was because of the claimant’s late attempt at introducing a lengthy supplemental witness statement had led to the hearing being adjourned.

[45]We ought to make clear what our evaluation of these particular events is at this stage. We have an open mind about the credibility generally of the claimant’s evidence in relation to other matters. We have not yet reached any conclusion about the general credibility of the claimant’s evidence. One thing, however, that is abundantly clear to us is that the claimant must have known from 2011 onwards of the importance of including in his witness statement all those matters on which he wanted to rely at the final hearing. The experience of being made the subject of an adverse costs order would be memorable. It would have given painful resonance to the plain words of Employment Judge Slater and Employment Judge Ryan in their respective orders as to the content of witness statements.

The hearing

[46]The hearing before us started on 1 March 2017. No sooner had the employment judge introduced the panel than the claimant applied for the hearing to be adjourned.

[47]During the course of the claimant’s adjournment application and his submissions over the ensuing few days, the employment judge asked the claimant a number of questions designed to help him focus his arguments. For whatever reason – and here we must be careful not to leap to conclusions about any answers the claimant may give during his oral evidence – the claimant appeared to find it virtually impossible to give straightforward answers. His answers were lengthy, often veered away from the question and often did not begin to engage with the question in the first place. Further delay was caused by the claimant arriving late on the first two days of the hearing.

[48]In order to make progress with the hearing, the tribunal resorted to giving the parties time limits to make their submissions in relation to the contested applications. The claimant was fully consulted at the outset of an application about the proposed time allocation and his views were taken into account. Invariably the claimant overran his time allocation despite being warned when it was approaching. The tribunal allowed some additional time and eventually informed the claimant that had run out of time.

Conclusions

[49]On Day 2 of the hearing (Thursday 2 March), the tribunal decided that it would not be able to determine the claimant’s applications without clarifying the way in which the claimant put his case. There was still the unresolved dispute as to whether the claimant was entitled to pursue the Appendix 2 allegations (which the respondent viewed as being unsupported by evidence) or not. In breach of paragraph 10 of the 9 December 2016 order, the claimant had not drawn the respondent’s attention to the documents which he believed supported the Appendix 2 allegations. The tribunal decided to give him one last opportunity to go through this exercise. The claimant was given Friday 3 March, Monday 6 March and all of the weekend to prepare. Nevertheless it took all of Day 3 (Tuesday 7 March) and most of Day 4 (Wednesday 8 March) for the claimant to clarify how he was putting his case and to identify under each of the alleged disclosures and detriments in the FBPs what, if any, evidence currently supported the allegation.

[50]Eventually, based on the claimant’s oral submissions, the tribunal was able to record the claimant’s case in writing in a manageable form, which now appears as Schedule A. Where the claimant was unable to point to any specific evidence in support of an allegation of a protected disclosure or a detriment, we recorded that fact in Schedules B and C. We also included in Schedules B and C allegations in support of which the claimant had drawn our attention to particular documents or passages in witness statements, but where, on a plain reading of the document or passage, it did not support the proposition that the claimant was advancing.

[51]During the course of the claimant’s attempt to clarify his FBPs, he referred to a number of incidents and allegations which he contended were covered by his existing claim. These were: 51.1. An incident concerning Patient L. Reference to the incident can be found at page 700 of the bundle. This, the claimant said, fell under the heading, “Generating unnecessary complaints” at page 321 of the bundle. He also sought to introduce a like allegation at corresponding pages in the FBPs under different heads of claim. The claimant confirmed that the Patient L incident itself took place in December 2012 and resulted in a complaint in February 2013. 51.2. An incident referred to at page 684 of the bundle. This was said to form part of the claim appearing at page 341 of the bundle headed “Undermining”. It was also stated to be the sole allegation under the heading “Insignificant issues [etc]” at page 326. He advanced his claim in the same way under the same headings elsewhere in the FBPs. The report at page 684 was dated 22 January 2013 and stated that the incident had occurred on the same day. The claimant indicated, without any apparent basis, that the incident outlined in the report actually took place significantly earlier than 22 January 2013. Even if the report misstated the date of the incident, it does not get around the date of the report itself. Unless the report was a forgery, it was made in January 2013. 51.3. An incident referred to at page 779 of the bundle. This was said to be relevant to pages 340 and 341 (respectively “The (wrong) way…” and “Undermining”). The incident itself happened in May 2013. 51.4. A claim for damages for breach of contract on the basis that the respondent unilaterally required him to work sessions or programmed activities at particular times. Such an allegation appeared in the FBPs in factual terms at page 342 of the bundle, but not as a free-standing claim for damages

[52]Whilst discussing the allegation headed, “Generating unnecessary complaints” (page 321 and corresponding pages), the claimant gave further detail about the incident described at page 322. The woman who developed infection as a complication of Caesarean section was Patient Z. The person who is alleged to have accused the claimant of not washing his hands was Ms Trinick. The claimant sought disclosure of Patient Z’s notes.

[53]On Day 2 of the hearing, the respondent’s solicitor informed the tribunal that Mr Amu would not be attending to give evidence. He had left the respondent’s employment and was believed to be living abroad. The respondent did not know his current address.

[54]At various times during the course of the hearing, the claimant told us that he did not want to give away the points he wanted to make in support of his case. He wanted evidence in support of his case to emerge for the first time when he was cross examining the respondent's witnesses.

[55]While we were deliberating on the various preliminary issues, the claimant sent a fax to the tribunal making further submissions and citing further cases. We read it and took it into account.

[56]By the time all the preliminary matters had been resolved, there was insufficient time to complete the evidence. The parties agreed that the case would have to be re-listed part-heard for the evidence to be given. Relevant law Overriding objective

[57]Rule 2 of the Employment Tribunal Rules of Procedure 2013 sets out the overriding objective as follows: The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable—(a) ensuring that the parties are on an equal footing;

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

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

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

[58]The claimant argues, as a matter of general principle, that tribunals are under a duty to treat litigants in person more favourably than parties who are represented. In support of his argument, the claimant relies on Walls Meat & Co v. Khan

[1979] ICR 52

and Dedman v. British Building and Engineering Appliances Ltd

[1974] 1 All ER 520

. We do not think that these cases are authority for that proposition. They deal specifically with the question of whether it was reasonably practicable for a claim to be presented within the statutory time limit. Our responsibilities towards unrepresented litigants come from the overriding objective. We must try to put them on an equal footing with their represented opponents. Examples may include explaining procedures and technical terms, helping a claimant to clarify a claim by discussing it in non-technical language, and taking into account their lack of legal advice in evaluating their reasons for delaying. The extent of an unrepresented party’s experience of conducting employment tribunal proceedings will be relevant to the degree to which the tribunal should intervene to put that party on an equal footing. Just as with a represented party, we must not descend into the arena and help the claimant to make his case: Muschett v. HM Prison Service

[2010] EWCA Civ 25

. To go that far would give the appearance of being biased against the respondent.

[59]The onus is on the parties, and not the tribunal, to ensure that all relevant evidence is presented. Tribunals are encouraged to be as helpful as possible to litigants in formulating and presenting their cases. Whilst it is always good practice for tribunals to clarify with a claimant, particularly if they are appearing in person or without a professional representative the precise matters raised in the claim form which is to be pursued and to seek confirmation that any others raised are not pursued, it is ultimately a matter of judgment for the tribunal. Matters such as these should not be erected into a duty: Mensah v. East Hertfordshire NHS Trust

[1998] IRLR 531

and Kumchyk v. Derby County Council

[1978] ICR 1116

, EAT Case management orders

[60]Rule 29 of the 2013 Rules gives tribunals the power to make case management orders, which may vary, suspend, or set aside an earlier case management order where necessary in the interests of justice.

[61]In Serco Ltd v. Wells

UKEAT/0330/15

, HHJ Hand QC ruled that the power to vary an earlier order is not untrammelled. Where an employment judge makes an order, another employment judge of equivalent jurisdiction may not vary or revoke that order unless(a) there has been a material change of circumstances since the order was made or

(b) the order has been based on either a misstatement (of fact or law) an omission to state relevant fact or

(c) there is some other occasion making revocation necessary in the interests of justice – occasions falling into this latter category will be rare and out of the ordinary. Whether amendment is required

[62]A tribunal must not adjudicate on a claim that is not before it: Chapman v. Simon [1993] EWCA Civ 37.

[63]In Chandhok v. Tirkey UKEAT0190/14, Langstaff P observed:17. ….Care must be taken to avoid such undue formalism as prevents a Tribunal getting to grips with those issues which really divide the parties. However, all that said, the starting point is that the parties must set out the essence of their respective cases on paper in respectively the ET1 and the answer to it. If it were not so, then there would be no obvious principle by which reference to any further document (witness statement, or the like) could be restricted. Such restriction is needed to keep litigation within sensible bounds, and to ensure that a degree of informality does not become unbridled licence. The ET1 and ET3 have an important function in ensuring that a claim is brought, and responded to, within stringent time limits. If a “claim” or a “case” is to be understood as being far wider than that which is set out in the ET1 or ET3, it would be open to a litigant after the expiry of any relevant time limit to assert that the case now put had all along been made, because it was “their case”, and in order to argue that the time limit had no application to that case could point to other documents or statements, not contained within the claim form. ...

18. In summary, a system of justice involves more than allowing parties at any time to raise the case which best seems to suit the moment from their perspective. It requires each party to know in essence what the other is saying, so they can properly meet it; so that they can tell if a Tribunal may have lost jurisdiction on time grounds; so that the costs incurred can be kept to those which are proportionate; so that the time needed for a case, and the expenditure which goes hand in hand with it, can be provided for both by the parties and by the Tribunal itself, and enable care to be taken that any one case does not deprive others of their fair share of the resources of the system. It should provide for focus on the central issues. That is why there is a system of claim and response, and why an Employment Tribunal should take very great care not to be diverted into thinking that the essential case is to be found elsewhere than in the pleadings.

[64]In Ali v. Office for National Statistics

[2005] IRLR 201

the Court of Appeal emphasised that, in deciding whether a particular complaint has been raised in a claim form, the tribunal should examine the document as a whole. Merely ticking a box alleging discrimination by reference to a protected characteristic may not be sufficient to raise a complaint of such discrimination if the underlying facts cannot be ascertained from the narrative.

[65]In Amin v Wincanton Group Ltd

UKEAT/0508/10/DA

, HHJ Serota distinguished between a claim that is “pleaded but poorly particularised” and a Chapman v. Simon case, where the complaint is not pleaded at all. In the former case, the claimant is not required to amend the claim. The lack of proper particulars does not affect the tribunal’s jurisdiction. The remedy in an appropriate case would be to strike out the relevant part of the claim. It is, HHJ Serota observed, “clearly undesirable that important issues in Employment Tribunal proceedings should be determined by pleading points”. Whether amendment should be granted

[66]Guidance as to whether or not to allow applications to amend is given in the case of Selkent Bus Company v. Moore

[1996] IRLR 661

. The following points emerge: 66.1. A careful balancing exercise is required. 66.2. The tribunal should consider whether the amendment is merely a relabelling of facts already relied on in the claim form or whether it seeks to introduce a wholly new claim. (Technical distinctions are not important here: what is relevant is the degree of additional factual enquiry needed by the claim in its amended form: Abercrombie & Ors v Aga Rangemaster Ltd

[2013] EWCA Civ 1148

). 66.3. Where the amendment raises substantial additional factual enquiry, the tribunal should give greater prominence to the issue of time limits and whether or not the relevant time limit should be extended. 66.4. The tribunal should have regard to the manner and timing of the amendment. 66.5. The paramount consideration remains that of comparative disadvantage. The tribunal must balance the disadvantage to the claimant caused by refusing the amendment against the disadvantage to the respondent caused by allowing it.

[67]In Amey Services Ltd v. Aldridge UKEATS 0007/16, Lady Wise held that tribunals must not allow an amendment to a claim whilst leaving questions of time limits to be determined at a later stage. The case concerned what is known in the jargon as a Prakash-type amendment - adding an allegation based on events occurring since presentation of the claim form. Lady Wise did not, however, distinguish between such amendments, on the one hand, and applications, on the other hand, to amend claims based on the events that took place before the claim form was presented. The rationale for taking time limits into account was that an amendment has the effect of backdating the new claim to the date that the original claim form was presented, meaning that the respondent cannot revisit the time limit issue later (Rawson v Doncaster NHS Primary Care Trust

UKEAT/0022/08

). Unfortunately, Lady Wise did not distinguish between the period from original presentation to amendment, on the one hand, and, on the other hand, the time that elapsed between the alleged discriminatory act and the presentation of the claim.

[68]It appears at least possible, therefore, that Aldridge will be interpreted as meaning that the time limit question must be determined at the amendment stage in every case. This could even apply where, as here, there is a long series of allegations stretching over a number of years, with a dispute as to whether the acts complained of were part of an act extending over a period. That is a notoriously fact-sensitive question. Adjournments

[69]When making his unsuccessful adjournment application on the first day of the hearing, the claimant drew our attention to the case of Pearson v. The British Airports Authority EAT 324/84. Whilst we were impressed with the claimant’s ability to track down an unreported Employment Appeal Tribunal case from 1984, we did find any general statements of principle that would particularly help us. in that case to be especially helpful. The judgment appeared to be confined to its particular facts, which were stark. The tribunal had refused an unopposed postponement application in circumstances where no disadvantage would have been caused by granting it, because the dispute turned on a pure question of law. The EAT ruled that the postponement should have been granted. Striking out

[70]Rule 37(1)(a) gives a tribunal the power to strike out all or part of a claim on the ground that it has no reasonable prospect of success.

[71]It is well established that it is inappropriate to strike out claims – and discrimination claims in particular – where there are central disputes of fact: Anyanwu & another v South Bank Students Union

[2001] ICR 391

. Complaints of whistleblowing detriment are to be treated in much the same way. It will only be in an exceptional case that such a claim will be struck out as having no reasonable prospect of success where the central facts are in dispute: Ezsias v. North Glamorgan NHS Trust

[2007] ICR 1126

, CA. Orders for disclosure

[72]Rule 31 of the 2013 Rules provides: “The Tribunal may order any person in Great Britain to disclose documents or information to a party (by providing copies or otherwise) … as might be ordered by a county court...”

[73]This rule raises the question of what documents a county court might order to be disclosed. The answer is to be found in the Part 31 of the Civil Procedure Rules 1998 (“CPR”).

[74]CPR Rule 31.6 is headed “Standard disclosure: what documents are to be disclosed?” and states: “Standard disclosure requires a party to disclose only-(a) the documents on which he relies;

(b) the documents which- (i) adversely affect his own case; (ii) adversely affect another party’s case; or (iii) support another party’s case.”

[75]What is significant about that paragraph is that it places a limit on what is to be disclosed; it does not automatically mean that any document falling within Rule 31.6 will always be ordered by a court to be disclosed to another party.

[76]From time to time, tribunals will be faced with an application for disclosure of documents that are said to contain confidential material. The principles to be applied in such a case were laid down by the House of Lords in Science Research Council v. Nassé

[1979] ICR 921

. They are to be found in the opinion of Lord Wilberforce. The textbook, Harvey on Industrial Relations and Employment Law, offers a condensed version of these principles. Counsel agree that it is sufficient for the tribunal’s purposes to have regard to the condensed version. The relevant principles are: 76.1. There is no principle of public interest immunity protecting such confidential documents. 76.2. Confidentiality alone is no ground for protection from discovery, although in the exercise of its discretion an employment tribunal might have regard to the fact that the documents are confidential and that to order disclosure would involve a breach of confidence. 76.3. On the other hand, relevance alone, though a necessary ingredient, does not provide an automatic test for ordering discovery, and so general orders for discovery should not be made. 76.4. The ultimate test in discrimination (as in other) proceedings is whether discovery is necessary for disposing fairly of the proceedings. If it is, then discovery must be ordered notwithstanding confidentiality. 76.5. In order to decide whether discovery is necessary, notwithstanding confidentiality, the tribunal should inspect the documents and consider whether justice can be done by adopting special measures, such as 'covering up', substituting anonymous references for specific names, or, in rare cases, hearing in camera. 76.6. It is for the tribunals to work out flexible procedures by which this may be done in such a way as to avoid delay and unnecessary applications.

[77]In Plymouth City Council v White

UKEAT/0333/13

(23 August 2013, unreported), HHJ McMullen QC, applying the principles set out in Nassé, gave helpful guidance as to the sequence to be adopted in a disclosure application (at para 11): ''(1) The judge must first consider if the document sought is relevant (if it is not, then it will not be ordered to be disclosed). (2) If it is relevant, the next question is whether it is necessary for the fair trial of the case for it to be ordered to be disclosed. Where there is objection, the judge should examine the document itself so as to consider whether or not in a contention that it is confidential it should still be disclosed (see, again, Nassé). (3) If the document is relevant and necessary and is to be disclosed, the judge should consider whether there is a more nuanced way of disclosing the material so as to respect confidentiality – in this case, for example, there is an issue of child protection – and the judge may then decide to order the document to be disclosed wholly or partially, usually by the system now known as redaction.” Admissibility of evidence

[78]The basic rule is that if evidence is relevant it is admissible and if it is irrelevant it is inadmissible. Nevertheless, the tribunal has the power to exclude relevant evidence, for example, on the ground that it is insufficiently relevant or unnecessarily repetitive: HSBC Asia Holdings BV v Gillespie

[2011] IRLR 209

. Questioning of witnesses

[79]The tribunal is not bound by the strict rules of evidence, but the orderly presentation of evidence is an essential part of a fair hearing. To ensure that proceedings are orderly the parties and their representatives should bear in mind two basic points. First, the party who opens the case should call all his relevant evidence before closing his case and ought not to present his evidence tactically by putting to the other sides witnesses in cross examination relevant matters which he has not first adduced as part of his own case. Second, the opposing party should ensure that all the relevant factual matters in dispute are put to the first party and his witnesses before he and his witnesses give evidence. If both these points are adhered to it will obviate the need for witnesses to be recalled, a course which can lead to a disjointed and sometimes unfair hearing. Support for these two principles can be found in Aberdeen Steak Houses Group plc v. Ibrahim

[1988] IRLR 420

and at paragraph PI-853 of Harvey on Industrial Relations and Employment Law. Witness orders

Relevant law

[80]Rule 32 of the 2013 Rules reads, “The Tribunal may order any person in Great Britain to attend a hearing to give evidence…” Victimisation and discrimination contrasted

[81]In the course of his submissions in favour of being allowed to pursue a complaint of victimisation, the claimant argued that victimisation is simply a kind of discrimination. A complaint of discrimination therefore includes a complaint of victimisation and, so the claimant contends, no amendment is necessary to introduce it. In order to evaluate this argument we have reminded ourselves of some of the relevant sections of EqA.

[82]Sections 13 and 19 of EqA respectively define direct and indirect discrimination. The word “discrimination” appears in both sections. They appear under the chapter sub-heading “Discrimination”. Section 27 defines victimisation. It does not use the word, “discrimination”. It appears under the sub-heading, “Other prohibited conduct.” Subsections 39(1) and 39(2) prohibit discrimination by employers. Victimisation is outlawed by subsections 39(3) and 39(4). Schedule 28 (the index of defined expressions) indicates that the definition of “discrimination” is to be found in a variety of sections, none of which include section 27.

[83]It is abundantly clear from these provisions that victimisation is not regarded as a form of discrimination. It is an entirely separate form of prohibited conduct. Timetabling

[84]Rule 45 of the 2013 Rules enables tribunals to impose time limits on various aspects of the proceedings including questioning of witnesses. Conclusions Refusal of adjournment on 1 March 2017

[85]We refused the claimant’s adjournment application. In view of the fact that the hearing ultimately ended up being adjourned part-heard, we keep our reasons very short. In summary: 85.1. The claimant’s first ground for adjourning the case was his wish to pursue his appeal to the Employment Appeal Tribunal. We felt bound to reject that ground. The pending appeal point had already been considered by Regional Employment Judge Robertson who had nevertheless refused a postponement. There had been no material change of circumstances since that decision. The claimant having spoken about the case with counsel under the ELAAS scheme was not a material change. Nor was the claimant having been asked for his availability for a preliminary hearing. There was nothing to suggest that the claimant’s prospects on appeal had improved. 85.2. Even had we been unconstrained by any prior decision, we would still have found the claimant’s first ground to have no merit. In our view, Employment Judge Ryan’s Refusal Decision was justified. (See below for our reasons for refusing the claimant’s renewed application for a supplemental witness statement). We respectfully agreed with the preliminary assessment of the Employment Appeal Tribunal that the claimant’s grounds of appeal had no reasonable prospect of success.. 85.3. The second ground of the adjournment application gave us more pause for thought. The reduction in the time allocation and the unavailability of witnesses was a material change of circumstances entitling us to look at the question of adjournment afresh. To some extent, the claimant had brought his difficulties on himself. It was not the claimant’s fault that the time allocation was reduced, but he should not have simply stood down his witnesses. 85.4. The witness difficulties did not, in our view, justify aborting the hearing. There were other, more proportionate, means of enabling witnesses to attend, such as taking witnesses out of sequence and, if necessary, issuing witness orders. 85.5. We were concerned that, if the hearing were simply adjourned, it risked not being re-listed until February 2018. That would have been over 4 years after the termination of the claimant’s employment. Memories were likely to fade further during that time. Do the FBPs as a whole require amendment?

[86]In our view, the FBPs provided clarification (albeit incomplete clarification) of the claimant’s existing claim, rather than introducing a new claim. They fall under the heading of further particulars which, in accordance with Amin, do not require amendment.

[87]The respondent argued to the contrary. Mr Allen made the forceful point that the principle in Amin could not give a claimant carte blanche to rewrite his claim completely. Whilst some of the allegations in the FBPs might have amounted to further detail of the vague allegations in the claim form, others were wholly new. He acknowledged that it would be a difficult exercise for the tribunal to establish on which side of the line each allegation fell. So difficult, we might add, that Mr Allen did not attempt it for himself. At no point has the respondent tried to separate, as it were, the wheat from the chaff.

[88]We would not want the parties to think we lack sympathy for the respondent’s position. The original claim form and subsequent 14-page further information were hopelessly vague. The respondent rightly anticipated that, without further clarification, it would face a moving target. But that is not the same as saying that the claim form, or the subsequent 14-page document, did not encompass the detail that later emerged. In coming to that view, we read the documents as a whole in accordance with Ali. There was virtually no attempt in those documents to identify or limit the incidents upon which the claimant relied. Employment Judge Slater clearly did not interpret these documents as alleging particular incidents to the exclusion of others. Otherwise she would not have made the order for further information as she did.

[89]Frustrating as it may be for the respondent, our ruling is that the FBPs did not require an amendment to the claim. Where an allegation was discernible from the FBPs, we included it in Schedule A. Allegations falling outside Schedule A

[90]It is a natural consequence of Chapman and Chandok that, having been through the painstaking exercise of recording the claimant’s claim, the claimant cannot be permitted to introduce further allegations without an amendment. Bearing in mind the length of time it has taken to deal with the amendment applications so far, it is likely – though not certain - that further applications to amend will be rejected without further consideration. Patient L incident - amendment

[91]If the claimant wishes to rely on the Patient L incident as a detriment, he has to amend his claim. It was not included in the FBPs.

[92]Our route to this decision took us to a point of principle which ran through many of the amendment arguments. The claimant argued that minor errors over dates in his FBPs should not operate as a procedural bar to the tribunal considering his claim on its merits. As attractive as this argument sounds, we cannot agree that the dates in FBPs were simply minor errors. They were an important part of the formulation of his claim. The alleged dates of detrimental actions had every appearance of being deliberately chosen. They would lead any reasonable reader to believe that the claimant was alleging he had been detrimentally treated during those periods, but not detrimentally treated during other periods. A reasonable reader would have attached particular importance to those dates because the accompanying narrative was too vague by itself to enable the respondent to know what precise incidents were being alleged by the claimant. The respondent needed the dates in order to know what case it had to meet. To put it another way, the mention of specific time periods impliedly excluded any allegation of detriment occurring at any other time.

[93]The dates of the Patient L incident and subsequent complaint fell outside the dates of alleged detrimental acts appearing at pages 321. It was impliedly excluded.

[94]In our view, the amendment should be refused. This is an extremely late application coming after many opportunities for the claimant to clarify his claim. Introducing the Patient L incident would raise significant additional factual enquiry. In particular, the tribunal would need to make a finding as to why the concern in relation to Patient L was raised or escalated. Was it because of a protected disclosure or some protected characteristic or fixed-term status? Or was it for other reasons? The incident dates back over 5 years. During that time, memories will have faded. This will present the respondent with a very real disadvantage if the amendment were to be allowed. By contrast, if the amendment is refused, the disadvantage to the claimant will be relatively modest. He will lose the chance to add one incident to what are already literally hundreds of allegations that already form part of his claim. Other incidents - amendment

[95]For essentially the same reasons we refuse the claimant permission to proceed with the other allegations that require amendment. The detail of those allegations is set out in paragraph 51 above. In each case, the incident could not be identified from the narrative and was impliedly excluded from the claim because it fell outside the dates of alleged detrimental acts. In each case, an amendment would have raised significant additional factual enquiry which would have resulted in witnesses trying to cast their minds back several years. Victimisation - amendment

[96]The claimant’s claim does not currently include a complaint of victimisation. The claimant’s attempts to argue otherwise are misconceived. The claim form did not use the word “victimisation” in any context that could reasonably be understood as a complaint of victimisation under EqA. So far as the claimant alleged victimisation at all, it was clearly in the context of a complaint under section 43B of ERA (detriment for making protected disclosures). For the reasons we have given, it is simply wrong to suggest that victimisation is a form of discrimination.

[97]As to whether an amendment should be granted: 97.1. The application is made extremely late. 97.2. The allegations of detriment are the same as those for the other strands of his claim. No additional factual enquiry is needed to determine how the claimant was treated. The tribunal is already seized of the “reason why” question. If the amendment were granted, the tribunal would additionally have to ask itself the subtly different question of whether the respondent was motivated by the claimant having made allegations of discrimination. 97.3. This brings us to more troubling new area of factual enquiry. Did the claimant do a protected act in the first place? On the second day of the hearing the claimant was asked to specify which of the protected disclosures in the FBPs were also alleged to amount to protected acts. He was unable to do so and has failed to provide that information subsequently. The tribunal is left having to assume that, if given the opportunity, the claimant would contend that all 71 or so protected disclosures were protected acts for victimisation purposes. The tribunal would have to determine whether, in each of these 71 disclosures, the claimant expressly or impliedly asserted that his rights under EqA had been contravened. That is a large fact-finding task and a difficult one. Witnesses would have to cast their minds back to 2012 to recall what was said in a telephone conversation. Allowing the amendment would cause an incurable disadvantage to the respondent. The claimant is disadvantaged by the amendment being refused, but that is a misfortune he has brought upon himself by leaving his application so late. 97.4. There is one exception. It relates to the claimant’s letter of 26 July 2013. That letter clearly alleged discrimination. It is hard to see how fading memories could affect the question of whether the letter came within the statutory definition. We are prepared to allow the claimant to rely on that letter as a protected act. 97.5. When it came to the amendments to allege specific detriments, we decided to adopt different approaches depending on whether the alleged detrimental act was done before or after 26 July 2013. In respect of the acts allegedly occurring before that date, we refuse the amendment. The refusal causes no hardship to the claimant. He did not at any stage seek to advance a case that the respondent had victimised him because they believed he would do a protected act in the future. If the only protected act post-dated the alleged detriment, the claimant has no prospect of showing that the act was done because of the protected act. Refusing the amendment would merely be depriving the claimant of the opportunity to bring a hopeless case. 97.6. The claimant has an arguable complaint based on detriments allegedly happening after 26 July 2013, provided that they are already alleged in the FBPs. The respondent is not disadvantaged by an amendment to allow such a claim to be pursued. Despite the lateness of the application, we allow it. Comparators - amendment

[98]The claimant needs an amendment to his claim in order to allege that he was treated less favourably than Rita Bhalla. A distinction must be drawn here between (on the one hand) the claimant saying how Ms Bhalla was treated as evidence of how a hypothetical comparator would have been treated and (on the other) alleging as an ingredient of his claim that Ms Bhalla actually received better treatment than him. For the former purpose, no amendment is needed. For the latter, an amendment is required. This distinction is particularly important when considering the complaint under FTER.

[99]In his FBPs the claimant decried the respondent’s reply to his questionnaire. He might have thought that, by doing so, he was reserving the right to rely on further comparators at a later stage without the need for any amendment. It is time to disabuse the claimant of that notion. It would be a recipe for chaos. The claimant must have known that the FBPs were his last opportunity to formulate his claim. The respondent and the tribunal were entitled to regard the claimant as having relied solely on Ms Jones as a comparator.

[100]In our view, the amendment should not be granted. Our reasons are as follows: 100.1. Naming Ms Bhalla would raise an additional factual enquiry. Were the claimant’s circumstances the same or not materially different from those of Ms Bhalla? For the purpose of FTER, was she a comparable permanent employee? Why was the claimant treated differently to her? The answers to these questions will depend at least in part on the recollections of witnesses whose memories are likely to have faded. 100.2. The application was not made until the second day of the hearing. The claimant has no good reason for the delay. The documents that prompted the claimant to make the application have been in his possession since September 2016 at the latest. 100.3. We have not reached a final conclusion about the adequacy or otherwise of the respondent’s replies to the claimant’s questionnaire. Reading it for ourselves, it does not appear to us that the missing information on ethnic breakdown of consultants would have enabled the claimant to identify Ms Bhalla as a suitable comparator. All he needed was the name of a full-time, younger worker who did broadly the same job as him. 100.4. If the amendment were refused, the claimant’s disadvantage would be less than he thinks. He can still compare himself to Ms Jones, even if she is no longer an employee at the date of the hearing.

[101]We do allow the claimant to amend his claim to rely on additional comparators in the event of further disclosure. To grant open-ended permission such as this would be to create a real risk of the goal posts being moved in future. It is far too late for that. As Employment Judge Slater has already reminded the claimant, it is for him to formulate his case first and then wait for disclosure. Not the other way round. Breach of contract - amendment

[102]The final amendment application was made to introduce a free-standing claim for damages for breach of contract by being unilaterally required to undertake additional programmed activities. To avoid any doubt, we are sure that an amendment is required. The FBPs and the careful description of the claim by Employment Judge Slater simply do not mention this head of claim.

[103]In our view, this amendment, too, should be refused. We take on board that there is likely to be considerable exploration of the factual background to this claim in any event. The existing claim already concerns payment for the claimant’s additional programmed activities. In the context of the whistleblowing and EqA complaints, the tribunal already has to examine the reason why the claimant was given these extra sessions to do. Nevertheless, we think that this amendment would raise a significant new factual enquiry. Did he agree to the additional shifts? If the respondent breached the contract, what loss did the claimant suffer as a result? The answers to these questions, once again, are likely to depend on memories of events that are up to 5 years old. The disadvantage to the respondent in allowing the amendment outweighs any disadvantage to the claimant in refusing it. Supplemental witness statement

[104]We refuse the claimant’s renewed application for permission to rely on a supplemental witness statement. There has been no material change of circumstances since the Refusal Decision. The claimant argues that the two days spent clarifying his case are a material change. We disagree. Employment Judge Ryan did not base his Refusal Decision on the lack of clarity in the FBPs.

[105]Even given a free hand, we would make the same decision as Employment Judge Ryan, for the following reasons: 105.1. The claimant’s submissions on this point included an explanation of his reason for not having prepared a more complete witness statement in the first place. Here is how the explanation goes. Based on his experience of having sat on a jury at Harrow Crown Court, he thought that he would give his evidence in chief orally and there was no need for all his evidence to be in his witness statement. For the reasons we have already given we simply cannot accept this account. Once again, we stress that we have not reached any conclusions about the credibility of the claimant’s evidence generally. 105.2. Refusing a supplemental statement still leaves the claimant with a long list of allegations supported by the existing witness statements and documents in the bundle. 105.3. Granting permission would, as Employment Judge Ryan pointed out, give the claimant an advantage over the respondent because he would be able to tailor any supplemental evidence to fit the respondent’s witness statements which he has now had for several months. It would also add to the length of the case, by increasing reading and cross-examination time. Finishing the re-listed hearing within the allotted time is going to need very careful case management as things already stand. Any substantial supplemental evidence risks derailing that process. Examination-in-chief

[106]We are not prepared to allow the claimant to examine himself, or any other witness, in-chief for the purpose of eliciting the evidence that he wished to put in his supplemental witness statement. Not only would such a course defeat the purpose of the Refusal Order, it would take up further time and would leave the respondent having to deal on the hoof with evidence that it hears for the first time in the witness chair. Strike-out

[107]We start with the allegation at page 326 and the like allegations appearing elsewhere in the FBPs. The only incident on which the claimant relies is that referred to at page 684. We have already refused the claimant permission to amend his claim to rely on that incident. It follows that the claimant has no allegations left under this heading. There is simply nothing upon which we can adjudicate. This is therefore one of the rare cases where an allegation can be struck out without hearing the evidence.

[108]We have considered whether or not to strike out any of the remaining allegations. Our focus has been on the allegations in Schedules B and C. There is currently little, if any, evidence to support them. Such evidence as there is has been set out in Schedules B and C, together with the claimant’s concessions in relation to that evidence. In our view, the claimant’s own appraisal of the evidence is such that he should think very carefully about whether he wishes to pursue the allegations in Schedules B and C. To do so will inevitably put more pressure on the hearing timetable and will increase the costs incurred by the respondent.

[109]This is not, however, such a plain and obvious case that the claim or part of it should be struck out altogether. The allegations are fact-sensitive. The alleged protected disclosures listed in Schedule B are supported by some evidence in the form of paragraph 130 of the claimant’s witness statement. Our observations in relation to that evidence are little more than statements of the obvious, but they do not necessarily mean that the tribunal is bound to reject it. As for the Schedule C detriment allegations, we must bear in mind that, in finding the facts, we would take account not just of the claimant’s evidence but also that of the respondent’s witnesses. It is not unheard of for an employer’s witnesses to give evidence in cross-examination that supports the case of the employee. The claimant should not set too much store by this possibility. He will be permitted to ask leading questions of the respondent’s witnesses, but he will not be allowed to put a positive case to them unless it is supported by some evidence in the bundle or witness statements or in his own permissible answers to questions. Nevertheless, in such a fact-sensitive case, we would risk making an error of law by dismissing the allegations without allowing the evidence to run its course. Specific disclosure of patient notes

[110]We now turn to the claimant's application for specific disclosure of patient notes, starting with Patient L. The application is refused. Disclosure is not necessary to dispose fairly of the proceedings for these reasons: 110.1. It is not clear to us in fact how the Patient L incident is relevant to any allegation of detriment. Where the claimant expressed the wish to rely on the Patient L incident in relation to an allegation, we considered that the claimant would need an amendment, which we were not prepared to grant. 110.2. It is possible that Patient L might be relevant to the protected disclosures that the claimant allegedly made. Even then, the question for the tribunal is unlikely to be what actually happened in the incident. Rather, the tribunal will examine what information the claimant disclosed about the incident, what he believed that information would tend to show, also whether that belief was reasonable. We do not think that Patient L’s notes are likely to help us answer those questions. Patient notes do not generally record interactions between doctors about each other’s practice, or the opinion that one doctor has expressed about another. In broad terms, they show the patient’s history, findings on examination, treatment, and outcome. If a doctor or other health professional has a concern about a colleague’s dealings with a patient, that concern is generally raised in an incident report and not in the patient notes. We find it difficult to see how the patient notes could show the claimant disclosing something about anybody else or even what his basis was for disclosing it. 110.3. The claimant left it until the final hearing to apply for disclosure of the notes. 110.4. An order for disclosure would unnecessarily increase the parties’ expense. It would put the respondent to the cost of extensive redaction of the notes. They would have to be inserted into a bundle that is already about 1,700 pages long, we have decided overall it is not necessary to dispose fairly of the proceedings to disclose the notes relating to patient L.

[111]We also refuse the claimant’s application for specific disclosure of Patient Z’s notes. They are not necessary to enable the Tribunal to dispose fairly of the proceedings. They might show what each doctor did in relation to Patient Z, but not what any doctor thought about it. They would not show any encouragement by a doctor to a patient to make a complaint about a particular doctor. If a doctor had a negative opinion of another doctor’s handling of a case, it would appear in an incident report. Specifically in relation to the allegation at page 322 of the bundle, the allegation is whether Ms Trinick treated this incident as a complaint about the claimant or whether she encouraged Patient Z to make a complaint in the first place. We cannot see how the patient notes will help the tribunal determine either of those issues.

[112]We have also considered the claimant's request for disclosure of notes from two other patients. The claimant has not explained how the other patients’ notes would be relevant. Still less has he explained to us why it would be necessary to order their disclosure. The claimant has in any event left it far too late to apply for the notes and the cost of disclosing and redacting them would be disproportionate. Specific disclosure of further rotas

[113]Next we deal with the application for specific disclosure of further rotas. The claimant wants them so he can look for further comparators. This is precisely the approach against which Employment Judge Slater warned. The claimant is trying to get as many documents as possible from the respondent before telling them what case they have to meet. This tactic is known as “fishing”. It is time the claimant stopped. Witness orders

[114]We start with a general observation about witness orders. The claimant should not raise his hopes too high. Just because a witness order is granted dow not mean that the witness will give evidence in the claimant’s favour. He would not be able to ask leading questions of the witness. He would have to ask open questions and may then be stuck with the answers. To our minds, this consideration is relevant to whether a witness order should be granted in the first place. It is not enough for the claimant to show that the witness could give relevant evidence. The claimant must satisfy us that it is reasonably likely that a witness would give such evidence in response to the kinds of question that the claimant would be permitted to ask.

[115]We now turn to Mr Amu. The application is made late, but that is not the claimant’s fault. The first time the claimant could have known that Mr Amu would not be giving evidence was on the second day of the hearing. Until then he expected to be able to cross-examine Mr Amu and make use of the evidence already in his witness statement.

[116]Mr Amu’s witness statement appears to be relevant. He has referred to some conversations he had with the claimant in which issues were raised which appear at least similar to the protected disclosures upon which the claimant relies. It is not inconceivable that the claimant could ask open questions of Mr Amu that might elicit detail that would support his case. The overriding objective would normally point towards the witness order being granted.

[117]The respondent raises a point of jurisdiction. If Mr Amu is outside Great Britain, the tribunal has no power to make an order. We do not think this objection should stand in our way. The respondent has not provided any address for Mr Amu, or even told us what country he lives in. There is nothing as yet to substantiate the respondent’s belief that he is outside Great Britain. As the claimant points out, however, the respondent is in a far better position than he is to know where Mr Amu is actually living. In our view, the better course is to grant the order, subject to the right of Mr Amu or the respondent to apply to discharge it with evidence of his being overseas.

[118]Granting the order has consequences for managing the case. We cannot allow the hearing timetable to be derailed. Our experience of the hearing so far is that the claimant needs the maximum possible direction from the tribunal to help him manage his time. We have therefore decided to make a timetabling order to keep Mr Amu’s evidence within reasonable bounds. It would be unfair to limit the claimant’s time without imposing an equivalent restriction on the respondent. We therefore limit examination-in-chief to 30 minutes and cross examination to 30 minutes as well. We also take into account that Amu has made a very full witness statement. There should be very little in the way of supplemental questions in chief that the claimant should need to ask.

[119]We turn next to Ms Trinick. In our view, there are three reasons why we should refuse the order: 119.1. The claimant has left it too late to apply. 119.2. The claimant has not attempted to arrange Ms Trinick’s voluntary attendance by means of the procedure agreed at the preliminary hearing. 119.3. The claimant has not persuaded us that Ms Trinick would say anything, in answer to an open question, that would assist his case.

[120]So far as the other witnesses are concerned, the claimant has left it far too late to apply for witness orders and has not explained how their evidence would be relevant. Admissibility of paragraph 130

[121]We have decided to allow the claimant to rely on paragraph 130 of his witness statement. The evidence is highly relevant, in that it is an assertion that he made the 71 protected disclosures. It is unsatisfactory, for the reasons set out in paragraph 31. But that does not, in our view, mean that it should be excluded.

[122]As for Mr Allen’s legitimate concern about cross-examination, it is up to him whether he wishes to kick the hornet’s nest or take a more proportionate approach. The observations about paragraph 130 contained in Schedule B should enable Mr Allen to make an informed judgment about how detailed to make his questioning. Schedule B and C

[123]Finally, we will deal with our reasons for creating Schedules B and C. We ought to make clear that this is not the same as making a Deposit Order. We have not made an assessment of the merits of these allegations. We have not expressed any concluded view about their prospects of success. All we have done is recorded the claimant’s concessions about the current state of the evidence in relation to those allegations, together with our observation of what particular documents highlighted by the claimant appear to show.

[124]We should stress that we are still open to persuasion that there is merit in the Schedule B and C allegations. The purpose of Schedules B and C is to make clear to the claimant which allegations he could not substantiate with evidence when given the opportunity. That way, he can choose whether or not to pursue those allegations. It is only right to remind the claimant of the constraints that he has on bringing out new evidence in relation to these allegations. His prospects depend in large part on his rather speculative hopes of eliciting evidence in support of his case by asking questions of the respondent’s witnesses. Here, too, his task may be more difficult than he might think. We will not permit him to a witness a positive case that has no basis in the evidence.

[125]The claimant ought to be aware that to pursue the Schedule B and C allegations is likely to add to the cost of the hearing and will put pressure on the timetable set by Employment Judge Ryan. If the allegations are pursued and it transpires that there really is no evidence to support them, it would be open to a tribunal to decide that the claimant had acted unreasonably in choosing to take these allegations forward. Constitution of the tribunal going forward

[126]Once the judgment and reasons were announced to the parties, they were expressly invited to consider whether they were content for this tribunal, as presently constituted, to continue to hear the case. After a break of approximately 20 minutes, both parties indicated their consent. CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 Under the provisions of Rule 69, the Judgment sent to the parties on 28 March 2017 is corrected by the insertion of the names of Tribunal Members and at Paragraph 6 words are struck through. 4 May 2017 Employment Judge Horne Date 4 May 2017 Important note to parties: Any dates for the filing of appeals or reviews are not changed by this certificate of correction and corrected judgment. These time limits still run from the date of the original judgment, or original judgment with reasons, when appealing. EMPLOYMENT TRIBUNALS Claimant: Mr O Oyesanya Respondent: The Pennine Acute Hospitals NHS Trust HELD AT: Manchester ON: 1, 2, 7, 8, 9 and 13 March 2017 BEFORE: Employment Judge Horne Members: Ms C S Jammeh Mr A J Gill REPRESENTATION: Claimant: In person Respondent: Mr P Allen, solicitor This is the unanimous judgment and order of the tribunal. In this document:a. “ERA” means the Employment Rights Act 1996;

b. “EqA” means the Equality Act 2010;

c. “the bundle” means the bundle prepared for the final hearing starting on 1 March 2017;

d. “the Further and Better Particulars” or “FBPs” means the document appearing at pages 161 to 460 of the bundle;

e. “the September 2014 CMO” means the case management order made by Employment Judge Slater on 24 September 2014; and

f. “the List of Issues” means the list of issues prepared by the respondent dated December 2016.

Conclusions

[1]The following parts of the claim are dismissed following withdrawal by the claimant:a. the allegations headed, “Insignificant issues highlighted” at pages 326, 369, 410 and 440 of the bundle;

b. the allegations headed, “Refusal to reconsider [etc]” at pages 332, 373 and 443 of the bundle;

c. the allegations headed, “Unnecessary incident forms/’low threshold’ for filling incident forms” at pages 344, 381 and 447 of the bundle.

[2]It is recorded that the claimant withdrew those allegations on the basis that they merely duplicate allegations appearing elsewhere in his claim.

[3]The allegation headed, “Insignificant issues about conduct being highlighted and/or escalated” appearing 326, 368, 409 and 440 of the bundle is struck out on the ground that it has no reasonable prospect of success.

Conclusions

[1]The tribunal will determine the claim as it is set out in Schedule A.

[2]The claimant is not required to amend his claim in order to rely on the protected disclosures set out in Schedule A or to pursue the complaints of protected disclosure detriment, race discrimination and age discrimination as set out in Schedule A.

[3]The claimant is not permitted to include any allegation in his claim unless it appears in Schedule A.

[4]The claimant has permission to amend his claim by including a complaint of harassment related to age and harassment related to race.

[5]The claimant has permission to amend his claim to include a complaint of victimisation, but only to the extent that it appears in Schedule A.

[6]The claimant does not have permission to amend his claim so as to allege that he was treated less favourably than Rita Bhalla was treated. If the existing evidence refers to the way Rita Bhalla was treated, and it is relevant to an allegation in Schedule A or Schedule B, the claimant may rely on such evidence for the purposes of the complaints of direct race discrimination and direct age discrimination to show how a hypothetical comparator would have been treated.

[7]The claimant does not have permission to amend his claim so as to include, under his allegation headed “generating unnecessary complaints” at page 321 of the bundle, any allegation based on the complaint of Patient L (referred to at page 700 of the bundle). Permission is likewise refused for the corresponding allegations under the same heading appearing elsewhere in the Further and Better Particulars.

[8]The claimant does not have permission to amend his claim so as to include, under his allegation headed “generating unnecessary complaints” at page 321 of the bundle, any allegation based on the incident referred to at page 684 of the bundle. Permission is likewise refused for the corresponding allegations under the same heading appearing elsewhere in the Further and Better Particulars.

[9]The claimant does not have permission to amend his claim so as to include under his allegation headed, “The (wrong) way that complaints [etc] were handled” at page 340 of the bundle, any allegation based on the incident referred to at page 779 of the bundle. Permission is likewise refused for the corresponding allegations under the same heading appearing elsewhere in the Further and Better Particulars.

[10]The claimant does not have permission to amend his claim so as to include under his allegation headed, “Undermining” at page 341 of the bundle, any allegation based on the incident referred to at page 779 of the bundle. Permission is likewise refused for the corresponding allegations under the same heading appearing elsewhere in the Further and Better Particulars.

[11]The claimant does not have permission to amend his claim so as to include a claim for damages for breach of contract on the basis (as alleged at page 342 of the bundle) that the respondent unilaterally required him to work sessions or programmed activities at particular times.

[12]The tribunal will determine the issues that are set out in the List of Issues, with the amendments referred to in Schedule D.

[13]By 4pm on 27 March 2017 the respondent must deliver to the claimant and the tribunal a new list of issues incorporating the amendments in Schedule D.

[14]The claimant’s application for permission to give evidence in chief about the matters referred to in Schedules B and C is refused.

[15]The claimant’s application for permission to ask questions in chief of witnesses about the matters referred to in Schedules B and C is refused.

[16]The claimant’s renewed application for permission to rely on a supplemental witness statement is refused.

[17]The claimant will be permitted to ask questions in cross-examination of witnesses called by the respondent, but will not be permitted to put any assertion to them unless there is an evidential basis for doing so.

[18]The claimant will be permitted to re-examine his witnesses and give evidence in re-examination in accordance with normal principles.

[19]The claimant’s application for specific disclosure of patient notes is refused.

[20]The claimant’s application for specific disclosure of further rotas is refused.

[21]The tribunal grants the claimant’s request for a witness order for Mr Amu.

[22]In the event that Mr Amu attends, the claimant will be allowed a maximum of 30 minutes to examine Mr Amu in chief and the respondent will be allowed a maximum of 30 minutes to cross-examine him.

[23]The respondent and/or Mr Amu may apply to set aside the witness order on the ground, amongst others, that Mr Amu is not in Great Britain. Such application must provide evidence of where Mr Amu is.

[24]The tribunal refuses the claimant’s application for a witness order for: 24.1. Dr Maniaz 24.2. Edna Smith 24.3. Cathy Trinick 24.4. Dr Thirwell

[25]If the claimant confirms the truth of his witness statement under oath, he will be treated as having confirmed his assertion at paragraph 130 that he made the disclosures in the way that is set out in the Further and Better Particulars.

[26]The objections to the Further and Better Particulars (set out in Schedule B) do not render paragraph 130 inadmissible, but will be taken into account in deciding what (if any) weight to give to that evidence.

[27]If the tribunal finds that any allegation in Schedule B or C is not well founded for the reasons set out in that Schedule, the tribunal will have regard to the reasonableness or otherwise of the claimant’s continued pursuit of that allegation when considering any application for costs.

[28]The hearing will be relisted with a time allocation of 15 days on dates to be notified separately to the parties. SCHEDULE A Complaints to be considered by the tribunal 1. The tribunal will consider: 1.1. the complaints listed in paragraph 8 of the September 2014 CMO; 1.2. the complaints of harassment related to age and harassment related to race, contrary to sections 26 and 40 of EqA; and 1.3. the complaint of victimisation contrary to sections 27 and 39 of EqA. 2. For the purposes of the complaint of automatically unfair dismissal (section 103A of ERA) and detriment (section 47B of ERA), the claimant relies on: 2.1. all of the protected disclosures 1 to 16 as set out in his Further and Better Particulars pages 180 to 297 and 2.2. his letter to Mr Amu dated 26 July 2013. 3. The numbered allegations listed below form the complete list of: 3.1. the less favourable treatment said to be because of race and/or age; 3.2. the unwanted conduct said to be harassment related to race and/or age; 3.3. the less favourable treatment said to be on the ground that the claimant was a fixed-term employee; 3.4. the alleged acts or deliberate failures to act done on the ground that the claimant made protected disclosures; and 3.5. the alleged acts or deliberate failures to act done on the ground that the claimant sought to exercise his right to be accompanied. 4. The list of allegations is as follows: Allegation Number Alleged Date Description number given in perpetrators FBPs 1 1 Dr Preston and June 2012 Overloading the claimant with work Dr Jain by putting the claimant on the rota to work all day followed by the “twilight” shift to cover Dr Russell 2 11 Ms Moore, Mr June 2012 Failure to ensure that whoever was Amu, Mr onwards named on the rota actually attended Adegbite, Dr to carry out the shift 3 2 Dr Preston and July to Further overloading the claimant Dr Jain September with work in the same manner 4 3 Dr Preston and October Further overloading the claimant Dr Jain 2012 to with work in the same manner, July 2013 despite assuring the claimant that it would be a “one-off” 5 4 Dr Preston and October Persistently overloading the Dr Jain 2012 to claimant with additional risky tasks July 2013 or high risk cases, in particular: - a patient with a stable ectopic pregnancy in about April - the 11 July 2013 incident involving Sister Barrett (p833) 6 14 Mrs Trinick October Encouraging Mrs Preston to make a 2012 complaint about the matters referred to at page 673 7 5(i) Dr Preston October/ Holding a “kangaroo” meeting to November blame the claimant when he raised 2012 concerns about the inappropriate behaviour of another consultant 8 12 Dr Preston October/ Failing to allow the claimant to be November accompanied at a meeting to 2012 discuss “the issues around the inappropriate behaviour of a consultant colleague” 9 18 Dr Preston October/ Causing a one-sided letter to be November inserted into the claimant’s 2012 personnel file without inserting a similar letter into the file of the other consultant involved in the dispute. 10 19 Dr Preston October/ Lying or distorting facts in relation November to the same dispute in order to 2012 discredit the claimant 11 8 Staff nurse October/ Making an “open threat”: “If you (unnamed) November don’t get out and allow me to use 2012 the consulting room, I will complain to the New Site Lead [Dr Preston]” 12 8 Gynaecological October/ Saying that the claimant “cannot Ward Sister November admit the patient”, when admission 2012 was clinically necessary and beds were available 13 6 Dr Preston October Giving the claimant more onerous 2012 to or mundane tasks including making July 2013 him pick up cases abandoned by others 14 8 Dr Preston February Stating on the telephone in an open 2013 office space, “It is the nature of the job.” 15 8 Dr Jothilakshmi February Blurting out, “If you don’t like it, you 2013 should talk to Dr Jain when she gets back.” (p708) 16 19 Mrs Preston, February Lying or distorting facts to discredit Dr Jain, Dr 2013 the claimant in relation to placing Jothilakshmi the claimant’s name on the rota 17 5(ii) Dr Preston Dr February Blaming the claimant when Dr Jain, Mrs 2013 Jothilakshmi “mistakenly” put the Trinick, Dr claimant’s name on the rota Jothilakshmi 18 11 Ms Moore, Mr February Failure to pair staff together as Amu, Mr 2013 suggested by the claimant’s e-mail Adegbite, Dr of 22 February 2013 (p705) 19 5(iii) Unclear March Blaming the claimant for seeking to 2013 prevent an unnecessary Caesarean section 20 5(iv) Dr Preston, April 2013 Blaming the claimant for the Mrs Trinick incident concerning the patient with stable ectopic pregnancy 21 26 Mr Amu April Following a complaint by Edna (possibly Smith, failing to tell her to postpone July) 2013 Caesarean section procedures 22 8 Midwifery April 2013 Saying, “Mr Oyesanya could not Sister, Ante- remove the partition insert, but the natal Clinic porters could.” 23 11 Ms Moore, Mr April 2013 Failure to ensure that the 4-step Amu, Mr protocol (described at page 331) Adegbite, Dr was followed in the event of staff Preston, Mrs shortages 24 12 Mr Amu 15 April Failing to allow the claimant to be 2013 accompanied at the meeting to discuss the non-renewal of his contract. 25 18 Mr Amu April 2013 Inserting a one-sided letter into the claimant’s personnel file without opportunity for comment. 26 13 Mrs Trinick April 2013 Failing to consider the claimant’s “appeal/grievance” made “initially verbally” to Mr Amu, repeated in letters from the British Medical Association and from the claimant himself. 27 21 Ms Moore, Mr April 2013 Refusing to consider the alleged Amu expected and promised security and/or continuity of tenure or renewal of contract. 28 22 Ms Moore, Mr April 2013 Providing spurious reasons for their Amu refusal as above. 29 26 Dr Preston 24 April In breach of the protocol for 2013 trainees, inviting Dr Cassim to put her complaint about the claimant in writing (page 754). 30 27 Dr Preston 25 April Failing to challenge Dr Cassim by 2013 asking her why she was speaking to the claimant in the manner set out in p754 31 26 Dr Preston April 2013 Failing to question the reliability of the complaint made by Dr F about the claimant at page 761 as an “adjustment” for Dr F’s “mental health issues” 32 27 Dr Preston April 2013 Failing to ask Dr F why she needed to go to the MAU 33 7 Ms Moore, Mr June 2012 Breaching the claimant’s contract Amu, Dr to July by adding shifts (see D1) and also Preston, Dr 2013 by giving inadequate notice Jain and Dr Jothilakshmi 34 14 Mrs Trinick April until Encouraging the three complaints June 2013 referred to at page 814. 35 14 Mrs Trinick April until Encouraging the complaint referred June 2013 to in Mrs Trinick’s letter of 9 August 2013 (document C1) 36 9 “Management” June 2012 Failing to pay sums due to the to July claimant for extra programmed 2013 activities, on call duties, annual leave, study leave or special leave. 37 10 Dr Jain, Dr February Denying the claimant the Preston, Mr 2012 to opportunity to take leave or to Amu and Ms July 2013 attend training (including needing to Moore cancel arranged leave/training several times including a conference in Liverpool in June 2013 and the respondent’s mandatory training in July 2013) 38 11 Ms Moore, Mr Various Failing to carry out an investigation Amu, Mr into the alleged protected Adegbite, Dr disclosures 1, 9, 11, 12, 14 and 16 39 11 Ms Moore, Mr Various Failing to carry out an investigation Amu, Mr into the alleged protected Adegbite, Dr disclosures 2-8, 10, 13 and 15 (as Preston, Mrs referred to in Schedule B) 40 11 Ms Moore, Mr July 2013 Failing to establish a robust Amu, Mr protocol for elective Caesarean Adegbite, Dr sections 41 11 Ms Moore, Mr Unclear Failing to ensure that a newlyAmu, Mr recruited agency doctor was “made Adegbite, Dr to focus on the problem” of Preston, Mrs ensuring that that whoever was Trinick named on the rota actually attended to carry out the shift. 42 12 Mrs Trinick June 2013 Failing to allow the claimant to be accompanied at a meeting following concerns about an unnecessary Caesarean section. 43 14 Mrs Trinick Unclear Encouraging a complaint about Patient Z (post-Caesarean infection) referred to at page 322 44 27 Dr Preston 11 July “Unleashing” Sister Barrett by 2013 placing her in a “high-risk situation” with the claimant 45 27 Dr Preston 11 July Failing to keep Sister Barrett out of 2013 high-risk situations with the claimant as an “adjustment” for Sister Barrett’s personal circumstances 46 8 Mrs Trinick July 2013 Saying, “Mr Oyesanya said it was not necessary to wash your hands.” 47 18 Mrs Trinick July 2013 Inserting a one-sided letter into the claimant’s file. 48 15 Mr Amu, Ms July 2013 Giving the claimant inadequate Moore and “the notice of termination by allegedly Directorate terminating the contract in a Manager" backdated letter received on 8 July 2013. 49 20 “Management” July 2013 Refusing to pay a contractual redundancy payment. 50 21 Dismissing the claimant 51 32 Ms Moore, Mr July 2013 Failing to provide written reasons Amu, the for the claimant’s dismissal “Directorate Manager” 5. For the purposes of the complaint of breach of section 12 of the Employment Relations Act 1999, it is recorded that the claimant does not rely on the matters in bold type at pages 425 and 449 of the bundle as separate detrimental acts or failures to act. These matters are relevant purely to remedy if the claimant’s complaint under section 11 of that Act is well founded. 6. For the purposes of the victimisation complaint: 6.1. the claimant may rely on one protected act only, namely his letter dated 26 July 2013 appearing at page 866 of the bundle; and 6.2. the only allegations of detriment that the claimant may pursue are Allegations 48, 49, 50 and 51. 7. For the purposes of complaint under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, the claimant compares his treatment to that of Mandy Jones. 8. The complaint of indirect discrimination is put on the following basis: 8.1. The claimant’s primary case is that the respondent is not being truthful about its reason for dismissing him. The indirect discrimination complaint is advanced as an alternative, in the event that the tribunal accepts the respondent’s reason. 8.2. The respondent had a practice of not employing non-resident consultants and employing resident consultants instead. 8.3. This practice put consultants of the claimant’s age at a particular disadvantage compared to younger consultants, in that resident consultants are generally younger than the claimant. 8.4. The practice also put consultants “from overseas” at a particular disadvantage compared to other consultants, because they tend to be older than consultants who began their careers in the United Kingdom and, hence, are more likely to be non-resident consultants. 8.5. The claimant was put at these disadvantages because he was nonresident. He does not suggest that he would have had any difficulty in taking up a resident post had he been invited to do so. 9. The complaints of wrongful dismissal, breach of contract (annual leave and redundancy payment), denial of the right to be accompanied and breach of contract/unlawful deductions relating to programmed activities are pursued on the basis set out in the Further and Better Particulars and List of Issues. SCHEDULE B In respect of all the alleged protected disclosures appearing below, the claimant has confirmed that: 1. Except for paragraph 130, there is nothing in the claimant’s witness statement to say that he made the disclosure; 2. Whilst paragraph 130 states that he made the disclosures as set out in the Further and Better Particulars, those Further and Better Particulars give no detail about how the claimant made the disclosures, except to state that, in every case, the disclosure was made during a telephone conversation followed by a face-to-face conversation; 3. Except where made clear in relation to the specific allegation, there is no evidence in any of the other witness statements that the claimant made the disclosure; 4. There is no evidence in the bundle of the claimant’s having made the disclosure; 5. The evidence on which he wishes to rely in support of the allegation that he made the disclosure consists of:5.1 His own supplemental witness statement (which has been refused)

5.2 His own evidence in chief (which has been refused)

5.3 Supplemental witness statements of other witnesses (which has been refused)

5.4 questions in chief of witnesses (which have been refused)

5.5 re-examination of witnesses (which will be governed by ordinary principles)

5.6 the answers that he expects that the respondent’s witnesses will give under cross-examination (which will be governed by ordinary principles)

5.7 questions in chief of witnesses attending by way of witness order (which has been refused). The alleged protected disclosures to which this schedule refers are: 1. Disclosures 2 and 3 (In addition, the claimant relies on pages 627 and 628 and paragraph 95 of his own witness statement: these might help to determine whether the information was true, but are silent as to whether the information was disclosed.) 2. Disclosure 4 (In addition, the claimant relies on pages 637 and 638 – these do not refer to any disclosure made by the claimant.) 3. Disclosures 5 and 6 (The claimant relies additionally on the letter at page 673 of the bundle – this does not refer to any disclosure made by the claimant.) 4. Disclosure 7 (The claimant also relies on paragraph 57 of Mr Amu’s witness statement, but that paragraph denies that the claimant disclosed the information.) 5. Disclosure 8. 6. Disclosure 10. (In addition, the claimant relies on the chain of emails at page 826 to 832 and paragraph 59 of Mr Amu’s statement. These do not state that the claimant disclosed the information which would make the disclosure qualify for protection.) 7. Disclosure 13 (In addition, the claimant relies on page 757, but this does not refer to any disclosure made by the claimant.) 8. Disclosure 15 (The claimant also relies on pages 751 to 753, but they do not refer to any disclosure made by the claimant. He wishes to rely on paragraphs 35, 36, 48, 52-53 and 54 of Mr Adegbite’s witness statement, but they do not refer to any disclosure made in April 2013. SCHEDULE C In respect of all the allegations appearing below, the claimant has confirmed that: 1. There is nothing in the claimant’s witness statement to say that the claimant was treated in the way that he alleges. 2. There is no evidence in any of the other witness statements that the claimant was treated in the way that he alleges. 3. Except as specifically referred to below, there no is evidence in the bundle of the claimant’s having been treated in the way he alleges. 4. The evidence on which he wishes to rely in support of the allegation consists of: 4.1. Inferences from the documents in the bundle identified next to the particular allegation 4.2. His own supplemental witness statement (which has been refused) 4.3. His own evidence in chief (which has been refused) 4.4. Supplemental witness statements of other witnesses (which has been refused) 4.5. questions in chief of witnesses (which have been refused) 4.6. re-examination of witnesses (which will be governed by ordinary principles) 4.7. the answers that he expects that the respondent’s witnesses will give under cross-examination (which will be governed by ordinary principles) and 4.8. questions in chief of witnesses attending by way of witness order (which has been refused) The allegations are: 1. Allegation 6 (see below) 2. Allegation 11 (the only additional evidence being a letter from Kate McCarthy which the claimant could not find) 3. Allegation 12 4. Allegation 14 5. Allegation 22 6. Allegation 23 7. Allegation 31 (the factual issue currently unsupported by evidence is whether Dr F had mental health issues casting doubt over the reliability of her account) 8. Allegations 6, 34, 35 and 43 (there currently being no evidence that Mrs Trinick encouraged the complaints - the claimant seeks to draw an inference from the fact that he was invited for an “informal chat” which, he says, was in reality a formal meeting); 9. Allegation 39 10. Allegation 40 (the only apparent connection to the claim being the allegation that the claimant made a protected disclosure, namely Disclosure 10) 11. Allegation 41 12. Allegations 43 to 46. SCHEDULE D Amendments to the List of Issues 1. Issues 16.2, 18.2, 19, 22, 32, 35, 50 and 62 are to be deleted. 2. The Appendix is to be deleted. 3. References in the List of Issues to “the Appendix” are to be changed to references to the table of allegations in Schedule A. 4. Issues 3 to 14 inclusive are to be replaced by a list setting out the same issues, but in relation to each of Disclosures 1 to 15 and in relation to each person to whom the disclosure was allegedly made. 5. To Issue 15, add: “15.3 Did the claimant believe that his disclosure was made in the public interest? 15.4 Was it reasonable for him to hold that belief?” 6. Issue 17 is to be correspondingly amended. 7. After Issue 23 add three further issues: “Was the alleged act or failure to act part of a series of similar acts ending with an act for which the claim was presented within the statutory time limit? If not, was it reasonably practicable for the claim to have been presented within the time limit? If not, did the claimant present his claim within such further period as the tribunal considers reasonable?” 8. After Issue 35, add two further issues: “Was the alleged treatment part of an act extending over a period ending on a date for which the claim was presented within the statutory time limit? If not, it is just and equitable to extend the time limit in respect of the allegation?” 9. In substitution for Issue 36, the following is to be added: “Did the respondent have a practice of not employing non-resident consultants and employing resident consultants instead?” 10. The respondent is required to add such further issues as it considers necessary to enable the tribunal to determine the complaint of harassment, both in relation to jurisdiction and the merits of the complaint. 11. After Issue 46, add two further issues: “Was the alleged treatment part of an act extending over a period ending on a date for which the claim was presented within the statutory time limit? If not, it is just and equitable to extend the time limit in respect of the allegation?” 12. In Issue 49, the word “predominantly” is to be deleted. 13. After Issue 49, add three further issues: “Was the alleged act or failure to act part of a series of similar acts ending with an act for which the claim was presented within the statutory time limit? If not, was it reasonably practicable for the claim to have been presented within the time limit? If not, did the claimant present his claim within such further period as the tribunal considers reasonable?” 14. From Issue 52, delete “or alternatively has claimed £20,107.75”. 15. To Issue 55, add “The claimant claims £22,342.50”). 16. In Issue 59, for the words in parentheses, substitute “the claimant claims £15,713.41”. Originally signed 13 March 2017 Amended version signed 26 April 2017

[29]The claimant’s written submissions offered an explanation as to why he had not disclosed Dr Earnshaw’s report by 14 January 2019. His explanation was that he was unable to obtain the report before 10 February 2019, by which time the deadline had passed. What he did not explain was why he had then hung on to the report until 9 July 2019.

[30]In his written submissions the claimant belatedly addressed the three questions on which he had been required to comment by paragraph 5 of the 13 December 2018 case management order. In summarising the claimant’s position I adopt for convenience the same numbering format as the case management order:5.1 He did not agree to the joint instruction of a medical expert. His reason was that, in his view, Dr Earnshaw already met the definition of an expert under Part 35 of the Civil Procedure Rules 1998.

5.2 He contended that he did not have the capacity to give consent to a medical examination and was therefore unable to agree to being examined by an expert instructed by the respondent.

5.3 He withheld consent to release of his general practitioner records, again on the ground of incapacity to consent.

[31]Having taken some time to read the claimant’s written submissions and evidence, Mr Hatfield put forward his own written submissions on behalf of the respondent. These he briefly supplemented by oral arguments. To summarise the respondent’s position: 31.1. The medical evidence did not indicate any reasonable prospect of the claimant recovering in time for the final hearing in January 2020; 31.2. Over the years, the claimant had demonstrated a consistent pattern of late compliance and non-compliance with tribunal orders. Only when faced with an unless order or a strike-out application had the claimant actually done what he had been ordered to do. 31.3. Even if the claimant were medically fit to attend the tribunal in January 2020, a fair hearing would still be impossible because of the delay that had occurred to date. In my later case management order I paraphrased the argument this way: “The claimant’s employment ended on 31 July 2013, nearly 6 years ago. Of the 7 witnesses that the respondent wishes to call, one has moved to the United Arab Emirates, two have retired and three have gone to work for other NHS trusts. Even if these witnesses can all be found and brought to the tribunal, they would have to try and cast their minds back many years because of the length of time it has taken to get the case to a hearing.”

[32]The claimant’s extensive written submissions did not engage with these latter two points.

[33]Having considered both parties’ arguments I proceeded to deal with the application to postpone the hearing and to have it relisted before a full panel including lay members. I gave written reasons for my decision and do not repeat them here. I did, however, think it was necessary to give the claimant a final opportunity to obtain further evidence and make further submissions. The 17 July 2019 case management order

[34]Following the hearing I caused a further case management order to be sent to the parties. Relevantly, it read: “ 1. Judgment on the respondent’s strike-out application is reserved. A decision will be made on 9 September 2019 and sent to the parties as soon as practicable after that date. 2. Neither party is expected to attend on 9 September 2019. 3. By 4pm on 16 July 2019 respondent must deliver to the claimant a copy of the respondent’s written submissions for today’s hearing. 4. The claimant may rely on further written submissions and medical evidence if he wishes to do so. Any further submissions and medical evidence must be delivered to the tribunal no later than 4pm on 27 August 2019. 5. The respondent may make written submissions in reply if it wishes to do so. If it does, those submissions must be delivered to the tribunal by 4pm on 2 September 2019. 6. The claimant’s application for the preliminary hearing to be conducted by a full panel including lay members is refused.”

[35]Accompanying the case management order was a further discussion note which set out the events of the hearing in detail and made various observations for the claimant’s benefit. These included: 35.1. An explanation to the claimant of what the deficiencies appeared to be in the medical evidence and how he might address them: “Assuming the facts set out in those paragraphs to be correct, it means that his health has not improved in accordance with Dr Earnshaw’s hopes. His condition does not appear to have improved in the six months from October 2018 or in the six months from January 2019. In fact, if anything, the claimant’s medical condition appears to have become more complicated, because the claimant has additionally had to undergo emergency treatment and investigation for angina. … [12] It may assist the claimant to know my preliminary view of the current state of the medical evidence. My opinion is of course, provisional and subject to any further representations the claimant might wish to make. As things stand, there does not appear to be any evidence, beyond the claimant’s own assertion, that he will be well enough to participate in a 15-day hearing in January 2020. Neither of Dr Earnshaw’s letters stated that the claimant would be well enough for a 15-day hearing in six months’ time. Even if that opinion could be read into Dr Earnshaw’s letters, subsequent events have proved his prediction to be wrong. [13] Between now and 27 August, the claimant has an opportunity to plug that gap in the medical evidence. It is up to him how he does it. One step might be to ask Dr Earnshaw specifically whether or not he believes that the claimant will be ready for a 15- day hearing by 20 January 2020 and to state the reasons for that opinion. It may or may not strengthen the claimant’s case if he provides his general practitioner records for the period since December 2018. They might contain some contemporaneous evidence of the claimant’s state of health at the time of the 8 “recent consultations” he has had since Dr Earnshaw dictated his last letter” 35.2. A summary of the points that I believed were at the heart of the respondent’s strike-out application, and a reminder that the claimant had an opportunity to make written representations specifically on those points. 35.3. A warning about the consequences of late compliance. The note read, relevantly: “Postponements and extensions of time21. Despite his medical conditions, the claimant is clearly capable of putting together detailed written submissions and collating medical documents. The claimant’s written submissions were hand-delivered after the hearing had already been due to start. He has made a retrospective application to extend deadlines that expired on 14 January 2019 without any real explanation of why he did not apply sooner.

22. This will not be permitted to happen again. The claimant has a deadline of 27 August 2019 for his written submissions and further medical evidence. The claimant should be in no doubt about the consequences of missing the deadline. If he allows the deadline to pass and then makes a retrospective application for an extension of time, it is highly likely that that application will be refused. I may decide to ignore any submissions and evidence received from the claimant after 27 August 2019.

23. Likewise, it is unlikely that the tribunal will agree to postpone the deliberation of the respondent’s strike-out application, whether on health grounds or otherwise. The claimant has a full opportunity to present his arguments in writing, which he is clearly capable of doing. The strikeout application needs to be resolved, one way or the other, leaving enough time for the parties to prepare for the final hearing in January 2020 if the claim is permitted to proceed.” Events since 9 July 2019

[36]The respondent delivered its written submissions to the claimant as required by the case management order. One set of submissions was sent by recorded delivery, which the claimant did not collect. The second set was sent by first class post.

[37]At 12.25pm on Friday 6 September 2019, half a working day before the resumed hearing date of the preliminary hearing and 10 days after the deadline had expired, the claimant faxed an application to extend time to rely on further medical evidence. Briefly summarised, his reason for needing more time was that Dr Earnshaw was unwell and the claimant had been unable to obtain a further letter from him. The claimant indicated his intention to seek a meeting with a partner at the surgery on 9 September 2019. He did not explain why he had left it until 6 September 2019 to apply for the extension of time.

[38]I considered the claimant’s application on the morning of today’s hearing. Without formally granting or refusing the application, I decided to wait until 2.00pm to see what the claimant provided. Because the claimant has not provided an e-mail address, telephone number or return fax number, it was not possible to inform the claimant that I would take this course. By 2pm, the claimant still had not provided any medical evidence. I decided to consider the strike-out application on the evidence so far available.

Relevant law

[39]Rule 2 of the Employment Tribunal Rules of Procedure 2013 establishes the overriding objective, which is defined as follows:(1) 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.

(2) 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.

[40]Rule 37(1) provides, relevantly: (1) At any stage of the proceedings, … on the application of a party, a Tribunal may strike out all or part of a claim… on any of the following grounds-… (c) for non-compliance with… an order of the Tribunal; … (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim…

[41]A claim cannot be struck out unless the claimant has been given a reasonable opportunity to make representations either in writing or at a hearing: see rule 37(2).

[42]The general rule is that complaints of discrimination in a diverse society cry out to be tried on their merits and should not be struck out where the facts are in dispute: Anyanwu v. South Bank Student’s Union

[2001] UKHL 14

[43]When considering whether or not to strike out a claim, a tribunal must apply a two-stage test. First, the tribunal must consider whether any of the grounds in rule 37(1)(a) to (e) have been established. If so, the tribunal must go on to decide whether or not to exercise its discretionary power to strike out the claim: Hasan v. Tesco Stores Limited UKEAT 0098/16.

[44]Where a party has engaged in conduct which is unreasonable, but which does not involve the breach of a tribunal order, the crucial and decisive question will generally be whether a fair trial is still possible: Weir Valves & Controls (UK) Ltd v Mr J B Armitage EAT 0296/03.

[45]Where a party has breached a case management order, tribunals should not strike out the claim unless that sanction would be proportionate. Where it is still possible to have a fair hearing it will only be a very rare case in which it would be proportionate to strike out the claim: Blockbuster Entertainment Ltd v. James

[2006] EWCA Civ 684

[46]A tribunal may strike out a claim where the claimant’s health prevents him from attending a hearing and there is no realistic prospect of sufficient improvement within a reasonable time. In Riley v. Crown Prosecution Service

[2013] EWCA Civ 951

, Longmore LJ said at para 28: “It would, in my judgment, be wrong to expect Tribunals to adjourn heavy cases, which are fixed for a substantial amount of court time many months before they are due to start, merely in the hope that a claimant’s medical condition will improve. If doctors cannot give any realistic prognosis of sufficient improvement within a reasonable time and the case itself deals with matters that are already in the distant past, striking out must be an option available to a Tribunal.”

[47]When deciding whether the claimant will be fit to attend a hearing within a reasonable time, the tribunal must take into account relevant medical evidence, but such evidence is not conclusive. It is open to the tribunal to disagree with a doctor’s predictions on the basis that previous predictions have been proved wrong: Peixoto v. British Telecommunications plc UKEAT 0222/07.

[48]There is no rule dealing with the use of expert evidence in the Employment Tribunal Rules 2013. Guidance on the use of expert evidence in the Employment Tribunal was given by the Employment Appeal Tribunal in De Keyser Ltd v Wilson

[2001] IRLR 324

at 330: ''(i) Careful thought needs to be given before any party embarks upon instructions for expert evidence. It by no means follows that because a party wishes such evidence to be admitted that it will be. [Although the procedures of employment tribunals differ from those in the civil courts, guidance may be found by way of analogy from the provisions of CPR rr 35.1–35.14 and 35PD.] A prudent party will first explore with the employment tribunal at a directions hearing or in correspondence whether, in principle, expert evidence is likely to be acceptable. (ii) Save where one side or the other has already committed itself to the use of its own expert (which is to be avoided in the absence of special circumstances) the joint instruction of a single expert is the preferred course. (iii) If a joint expert is to be instructed the terms which the parties will need to agree will include the incidence of that expert's fees and expenses. Nothing precludes the parties agreeing that they will abide by such view as the tribunal shall later indicate as to that incidence (though the tribunal will not be obliged to give any such indication) but the tribunal has for the time being no power as to costs beyond the general provisions of [rule 73 of the 2013 Rules]. (iv) If the means available to one side or another are such that in its view it cannot agree to share or to risk any exposure to the expert's fees or expenses, or if, irrespective of its means, a party refuses to pay or share such costs, the other party or parties can be expected reasonably to prefer to require their own expert but even in such a case the weight to be attached to that expert's evidence (a matter entirely for the tribunal to judge) may be found to have been increased if the terms of his instruction shall have been submitted to the other side, if not for agreement then for comment, ahead of their being finalised for sending to the tribunal. (v) If a joint expert is to be used, tribunals, lest the parties dally, may fix a period within which the parties are to seek to agree the identity of the expert and the terms of a joint letter of instruction and the tribunal may fix a date by which the joint expert's report is to be made available. (vi) Any letter of instruction should specify in as much detail as can be given any particular questions the expert is to be invited to answer and all more general subjects which he is to be asked to address. (vii) Such instructions are as far as possible to avoid partisanship. Tendentiousness, too, is to be avoided. In so far as the expert is asked to make assumptions of fact, they are to be spelled out. It will, of course, be important not to beg the very questions to be raised. It will be wise if the letter emphasises that in preparing his evidence the expert's principal and overriding duty is to the tribunal rather than to any party. (viii) Where a joint expert is to be used, the tribunal may specify, if his identity or instructions shall not have been agreed between the parties by a specified date, that the matter is to be restored to the tribunal, which may then assist the parties to settle that identity and those instructions. (ix) In relation to the issues to which an expert is or is not to address himself (whether or not he is a joint expert) the tribunal may give formal directions as it does generally in relation to the issues to be dealt with at the main hearing. (x) Where there is no joint expert, the tribunal should, in the absence of appropriate agreement between the parties, specify a timetable for disclosure or exchange of experts' reports and, where there are two or more experts, for meetings (see below). (xi) Any timetable may provide for the raising of supplementary questions with the expert or experts (whether there is a joint expert or not) and for the disclosure or exchange of the answers in good time before the hearing. (xii) In the event of separate experts being instructed, the tribunal should encourage arrangements for them to meet on a without prejudice basis with a view to their seeking to resolve any conflict between them and, where possible, to their producing and disclosing a schedule of agreed issues and of points of dispute between them. (xiii) If a party fails, without good reason, to follow these guidelines and if in consequence another party or parties suffer delay or are put to expense which a due performance of the guidelines would have been likely to avoid, then the tribunal may wish to consider whether, on that party's part, there has been unreasonable conduct within the meaning of [rule 76 of the 2013 Rules] (as to costs).'' Conclusions Power to strike out - breach of case management orders

[49]This case has been characterised by numerous breaches of case management orders on the claimant’s part, for which there has either been no real explanation (such as the failure to disclose Dr Earnshaw’s report before 9 July 2019) or an explanation which the tribunal has expressly rejected (as on 4 September 2014 and 1 March 2017). Despite being warned about his claim being struck out, and three “unless” orders having been made in the past, the claimant appears to continue to fail to comply with orders. He also continues to make retrospective applications to extend time at virtually the last possible moment without any adequate explanation for the delay. This leads me to conclude that the claimant’s breaches of orders have been deliberate and in full knowledge of the potential consequences.

[50]The power to strike out the claim therefore arises under rule 37(1)(c). Power to strike out – fair hearing no longer possible

[51]I would in any event conclude that there is no longer a realistic prospect of a fair hearing. This is on two grounds: 51.1. There is no realistic prospect of the claimant being medically fit to attend a tribunal hearing within a reasonable time; and 51.2. Even if the claimant would be ready to attend a hearing in January 2020, the respondent would be put to an incurable disadvantage because of the delay that has already occurred.

[52]I explain my reasoning on each ground in turn. Claimant’s health

[53]The claimant has now been medically unfit to participate at two important hearings: the resumed final hearing on 3 December 2018 and the preliminary hearing on 9 July 2019. I now have to decide whether or not there is a realistic chance of the claimant being well enough to attend a hearing within a reasonable period in the future.

[54]In order to answer that question, I must first decide what amounts to a “reasonable period”. In view of the delays that have already occurred, a reasonable period cannot be any longer than a few months. In reality, what this means is that there must be a real chance of the claimant being well enough to participate in the resumed final hearing in January 2020. If that hearing has to be postponed now on account of the claimant’s health, it cannot be relisted until about July 2020. If it is adjourned on the day, it is unlikely to be relisted until late 2020 or early 2021. Whatever one might think of the possibility of a fair hearing in January 2020, those further delays would be intolerable.

[55]My task, therefore, is to look at the possibility of the claimant being medically fit to participate in the hearing in January 2020. I have had to make this assessment without the benefit of any expert’s report, or at any rate, any report complying with the procedural safeguards mentioned in De Keyser. This is because the claimant has not consented to a joint instruction or to being examined by an expert instructed by the respondent. It may be that the reason for his withholding consent is that he lacks capacity, but that reason hardly inspires confidence that the claimant will be ready for a hearing in a few months’ time. My decision is also made without the benefit of the claimant’s general practitioner records. Again, the reason for not having the records is because the claimant has not given consent.

[56]The medical evidence, such as there is, is not encouraging. I set out my provisional view in the 17 July 2019 case management order. Dr Earnshaw was not saying that the claimant would be fit for a 15-day tribunal hearing. All he was doing was expressing the hope of improvement without any apparent basis, other than the claimant’s continued compliance with medication. To the extent that Dr Earnshaw’s letter of 8 October 2018 could be interpreted as predicting the claimant’s fitness to attend a tribunal hearing in 6 months’ time, that prediction was proved wrong by the claimant’s inability to attend the hearing on 9 July 2019.

[57]Nothing that has happened since July 2019 has caused me to change my mind. The claimant has had an opportunity to provide further medical evidence and has not done so.

[58]I have considered whether the tribunal might be able to make adjustments that would enable the claimant to participate in the January 2020 hearing. Once again I am hampered by the lack of evidence. There is nothing that suggests that any particular adjustment would enable the claimant to attend or otherwise involve himself. I know that the claimant is well able to make written submissions. It has occurred to me that he might make written submissions instead of attending the final hearing. Such an exercise would not serve the overriding objective. There are a great many factual allegations that turn on disputed oral evidence. A key ingredient of a fair hearing will be an opportunity for the respondent to question the claimant about his version of events. So will a chance for the claimant to question the respondent’s witnesses and hear their answers.

[59]Overall I think that there is no real chance of the claimant being well enough to make a meaningful contribution to the resumed hearing in January 2020. A hearing cannot therefore fairly take place within a reasonable time. In my view, the condition set out in rule 37(1)(e) is satisfied. Effect of past delay

[60]I also take the view that the delays up to now have had a severe impact on the fairness of any hearing that might take place in the future.

[61]By January 2020 it will be over 8 years since the first of the claimant’s alleged protected disclosures and over 6 years since the termination of his employment.

[62]Many of the claimant’s alleged protected disclosures, and allegations of discrimination and detriment, relate to things allegedly said over the telephone or in face-to-face conversations. Evidence of these comments will be particularly susceptible to fading memories.

[63]I have taken account of the fact that many of the respondent’s witnesses have left the organisation. This factor is not by itself conclusive: I would expect the respondent to take reasonable steps to trace former employees, especially those still working within the NHS, and to make arrangements for video evidence from witnesses who now live abroad. But the factor is nevertheless relevant. Once witnesses stop working for the respondent (and particularly when they leave the country or stop working altogether), they are likely to make a new start and put historic workplace events behind them. It is reasonable to suppose that their memories of these incidents will fade faster once they no longer have a reason to think about them.

[64]I have considered whether some of the damaging effect of the delay might have been mitigated by the fact that the parties have exchanged witness statements. This might possibly have saved the day had comprehensive witness statements been exchanged at an early stage. But it took more than 3 years from the termination of his employment for the claimant to make a witness statement. It is unlikely in this case that witness statements effectively preserved witnesses’ memories; at any rate, not enough to withstand the effect of a further 3 years’ delay.

[65]For these reasons, even if the claimant were able to attend the hearing in January 2020 and fully participate, I do not think it would be possible for that hearing to be fair.

[66]On this ground, too, I consider that my strike-out powers under rule 37(1)(e) are engaged. Discretion to strike out

[67]I remind myself that, just because I have the power to strike out a claim, it does not necessarily follow that I should do so. I have had regard to the requirement of proportionality. Striking out a claim is a draconian step, particularly so when it raises allegations of discrimination. I have therefore considered some possible alternatives.

[68]One possibility might be to do nothing. I could leave the resumed final hearing in the list to begin on 20 January 2020 and wait and see if the claimant attends or not. In my view, this course would defeat the overriding objective. It would put the respondent to what in all probability would be the wasted expense of preparing for and attending a third final hearing. It is also likely to cause additional stress to witnesses being brought back from retirement or their new jobs.

[69]I have also thought about adjourning the preliminary hearing further to give the claimant yet another opportunity to obtain medical evidence. Again, this course is not attractive. He has had two opportunities to get medical evidence of his own and a chance to give his consent to being examined by an expert. Both times he has missed the deadline and made a last-minute retrospective application to extend time. On the second occasion his retrospective application was made in the teeth of a very clear warning about the consequences. If I were to adjourn the preliminary hearing further, in all likelihood I would be faced with precisely the same situation in a few weeks’ time. The respondent would be put to the expense of attending another preliminary hearing only to find that the claimant does not attend and sends late written submissions asking for retrospective extensions of time.

[70]I would not want the claimant to think that I have no sympathy for his situation. His state of health is not his fault. But the time has come to draw a line under this litigation. The claim is therefore struck out. 16 September 2019

[80]In some cases, people might not tell the court or tribunal that they have a mental health issue or that they are having any difficulties. This might be because of the stigma attached to mental health, not knowing the court is willing to make adjustments or fear they will be taken less seriously. They may not themselves recognise that they have a difficulty. Unrepresented parties may be particularly unlikely to raise the matter.” Previous medical evidence 28. The claimant has previously submitted medical evidence for earlier hearings. Here is a summary: 28.1. His letter dated December 2018 stated that he suffered from a number of medical conditions, including “severe depression”. He enclosed a report from his then general practitioner, Dr Earnshaw, dated 8 October 2018. The report mentioned that his medication included Sertraline, although it did not actually state that the claimant had depression. The claimant’s GP fit notes for the period July to October 2018 stated that the cause of the claimant’s unfitness for work at that time was “low back pain”. 28.2. On 9 July 2019, the day of the preliminary hearing, the tribunal received written submissions from the claimant and a pack of medical evidence. The 6 of 23 submissions stated that the claimant had “severe depression” and was taking SSRI medication. It included a further medical report from Dr Earnshaw, this time dated 10 January 2019, which confirmed that one of the claimant’s medical conditions was depression. According to Dr Earnshaw, the medical conditions – or possibly the side-effects of medication – would impact on the claimant’s ability to participate in a hearing. Further GP fit notes were enclosed for the period January 2019 to July 2019. The medical condition stated there was “low back pain”. Dr Pughe’s evidence Overview of first report 29. I read Dr Pughe’s report of 23 August 2019. It appeared to have been prepared following a consultation on that date. 30. The broad scheme of Dr Pughe’s report was to address the three questions identified in the case management order sent to the parties on 15 December 2018. That order stated: “ 4. The letter or report must state the medical practitioner’s opinion as to:4.1 when the claimant is likely to be medically fit to participate in a 15-day hearing;

4.2 whether the claimant’s fitness to participate in such a hearing is affected by stress and, in particular, the stress of these proceedings; and

4.3 what if any adjustments the tribunal could make to enable the claimant to participate in the hearing.” First report – fitness for a hearing 31. Addressing the first question, Dr Pughe set out the claimant’s medical conditions and noted an improvement in the symptoms of each. Having done so, Dr Pughe expressed the following “reasoned prognosis”: “In my professional opinion, the clinical trajectory; my current assessment of improved symptomatology; the nature, duration and extent of his treatment; and compliance indicate that he is likely to be medically fit to attend, participate and give evidence during the 15 day tribunal hearing booked for January/February 2020.” 32. In coming to this view, Dr Pughe noted that the claimant had “reduced suicidal ideation”. 33. Dr Pughe answered the second question by first noting Dr Earnshaw’s opinion, 6 months previously, that “involvement in a trial at this time would generate sufficient stress and anxiety that there would be a negative impact on some or all of his medical conditions”. Having done so, Dr Pughe continued: 7 of 23 “My assessment today and impression of his clinical trajectory and prognosis suggest to me that things have improved since his assessment. | therefore still believe that he Is likely to be medically fit to attend, participate and give evidence during the 15-day tribunal hearing booked for January/February, 2020.” First report - adjustments 34. Dr Pughe addressed the question of what adjustments the tribunal would need to make in order to enable the claimant to participate in a hearing. Relevantly, Dr Pughe stated: “In my Professional Opinion, to enable [the claimant] to effectively attend, participate and give evidence in the hearing booked for January/February 2020 certain general adjustments will be necessary; as well as specific adjustments for his Physical and Mental Disability. General - Later Start each morning - Frequent Breaks - Avoid Distress, Overload or Tiredness … - Time allowance for tasks - Staff Assistance (if available) … In my Professional Opinion, the reliability or credibility of the eventual testimony is not affected. Therefore the court can be reassured that with continuing treatment and the following reasonable adjustments, he will be in a position to participate in the 15-day trial listed for 2020 and will be able to provide reliable and credible evidence. - Supplementary Witness Statement - Supplementary Questions - Allow more time in the Timetabling for the Claimant to question the Respondent's Witnesses Sending the Respondent’s Questions to the Claimant in advance - Help with Legal Representation (as he is currently relying on his own cognitive abilities which can be limited due to his depression) - Facilitating Representation 35. Dr Pughe did not explain how his skill and experience as a general practitioner would enable him to give an expert opinion as to the reliability or credibility of any witness’s evidence. Neither did Dr Pughe explain why a “supplementary witness statement” or “supplementary questions” would enable the claimant to give “reliable and credible evidence”. 8 of 23 36. These statements of opinion gave the impression of Dr Pughe acting as the claimant’s advocate on the question of whether the claim should be struck out, rather than assisting the tribunal with his expertise. Updated report - adjustments 37. Dr Pughe’s updated report confirmed his previous opinion that the claimant was fit to attend and participate in a 15-day hearing. He revisited the topic of tribunal adjustments. In addition to “the reasonable adjustments which I outlined before”, Dr Pughe made this suggestion: “I anticipate that, similar to the situation with the Health Service, there will be backlogs in the judicial system after the Covid-19 Lockown. Therefore, having a future hearing in blocks of 2 to 3 to 5 days; or any other available blocks may be mutually beneficial for his circumstances as well as that of a judicial system facing a backlog. He will benefit from the break and rest in between the blocks; and the judicial system will benefit from clearing the backlog earlier. I say this because it is quicker to book day cases or cases involving shorter hospital stays in the NHS with the envisaged backlog. Therefore the same principle may apply to the judicial system. This approach could present a logistical advantage in getting earlier hearing dates.” 38. Dr Pughe was well placed to assess the beneficial effect of a fragmented hearing on the claimant’s ability to participate. It would be well within Dr Pughe’s expertise to gauge how much rest the claimant would need between different stages of the hearing. His opinion in this regard was nothing new: his earlier report had already expressed the view that the claimant would benefit from one day’s rest between different stages of the hearing. But, in his supplementary report, Dr Pughe appeared to be making the same point for a different purpose. Instead of addressing the question of adjustments, Dr Pughe was giving his opinion that a hearing could be listed quickly if the claim were reinstated. This opinion was outside Dr Pughe’s area of expertise. He was not qualified to say was whether or not a fragmented hearing would result in an earlier listing. By making the point at all, Dr Pughe appeared to be arguing the claimant’s case, rather than giving his opinion as an expert. Updated report – explanation for delay in initial report 39. Dr Pughe’s supplementary report also contained a helpful factual account of the circumstances in which his original report was delayed. He explained Dr Earnshaw’s absence from the surgery, and the inability of the practice to keep the claimant informed as to the reason for, or duration, of Dr Earnshaw’s absence. He also explained that there had been delays caused by the practice moving to a different location. 40. I accepted that, because of the problems Dr Pughe explained, the claimant was unable to obtain Dr Pughe’s original report before the date of my strike-out decision. 41. Dr Pughe then expressed the following opinion: 9 of 23 “For the above reasons, in my professional opinion, it would be unfair to blame him for any delay or that he should suffer any consequential prejudice.” 42. It was not clear how Dr Pughe’s professional expertise would enable him to reach that opinion. Updated report - anonymity 43. Dr Pughe’s supplemental report “strongly supported” the claimant’s application for anonymity, stating that the claimant was “concerned about stigma damage to his children and family; as well as his Convention Rights and theirs”. I valued Dr Pughe’s expertise in identifying concerns that might impact on the claimant’s mental health, and making suggestions for how those concerns might be addressed. What I found harder to understand was why Dr Pughe thought it relevant to mention anybody’s Convention Rights. They are not within his field of expertise. Drawing the tribunal’s attention to Convention Rights is generally something that an advocate would do. Updated report – attributing past non-compliance to depression 44. The updated report dealt with past delays in complying with case management orders. Dr Pughe observed: “I further understand that it has been suggested that he has not been actively pursuing his case, or has been slow to comply with case management orders. These observations, if true, may not be his fault or within his control, given his serious depression which he has suffered for some time but may have kept confidential. In my professional opinion and experience, it is not unusual for patients, particular professionals[,] to keep conditions like depression and psoriasis confidential because of the fear of stigmatization. The possible suggestion of things being done at or near the deadline, if correct, will also be consistent with the spectrum of mood disorders from severe depression to severe anxiety, and vice versa. 45. I had to decide what to make of Dr Pughe’s opinion about the causes of the claimant’s previous non-compliance and late compliance with orders. I bore in mind, of course, the possibility that the claimant may have had mental health difficulties for a long time and been afraid to talk about them for fear of the stigma that it would cause. What I was not prepared to accept from Dr Pughe was any opinion that the claimant was blameless for the delays that had occurred since 2013. I reach this conclusion for the following reasons: 45.1. Dr Pughe did not set out the evidential basis for his opinion, other than his knowledge of how depression may affect people generally. It is true that there was evidence available to Dr Earnshaw, and presumably also to Dr Pughe, that the claimant had been taking anti-depressant medication in October 2018, and that Dr Earnshaw mentioned depression in January 2019. Dr Pughe also noted that the claimant had “reduced suicidal ideation”, implying that the claimant had had suicidal thoughts at some time in the past. But it seemed a big step from there to conclude that undisclosed depression may be the reason for the claimant’s pattern of late compliance going back to 2013. Dr 10 of 23 Pughe, and Dr Earnshaw before him, did not set out any evidence of depression or anxiety prior to October 2018. Depression and anxiety did not feature in any of the claimant’s fit notes from July 2018 onwards. Those conditions were not recorded in any of the claimant’s GP consultations from January to August 2019, as set out in Dr Pughe’s first report. 45.2. Dr Pughe did not appear to have been told the full procedural history. In particular, he did not appear to be aware that the claimant had previously given explanations which the tribunal had rejected. 45.3. Dr Pughe’s opinion was that, by December 2020, the claimant’s health had considerably improved. Yet on 15 December 2020, the claimant was still late in providing documents and kept overrunning his time allocation. That tended to suggest that the pattern of late compliance could not be explained by the claimant’s mental health alone. 45.4. I have mentioned several instances of Dr Pughe acting as the claimant’s advocate, rather than the tribunal’s expert. It seemed to me that this was another example. Dr Pughe’s opinion about the claimant’s late compliance appeared to be influenced by an understandable wish to help his patient get the outcome he wanted, rather by an assessment of the evidence in front of him. Admissibility of Dr Pughe’s evidence 46. I decided to admit Dr Pughe’s evidence, so far as it related to matters within his expertise. I accepted that the claimant could not reasonably have obtained Dr Pughe’s reports before the Judgment was sent to the parties. The Ladd v. Marshall criteria are satisfied. 47. Where Dr Pughe appeared to be acting as an advocate for the claimant, or straying outside his area of expertise, my approach was to consider Dr Pughe’s evidence as admissible, but to give it minimal weight. Information about further adjustments 48. The claimant’s written submissions set out further adjustments that the claimant asks the tribunal to make in order to give the claimant a fair opportunity to participate in the hearing. In addition to those adjustments mentioned by Dr Pughe, the claimant identified the following: “46… Allow one-day break between each key stage of the hearing:

(i) Claimant’s Evidence;

(ii) Submissions;

(iii) Respondent's Evidence;

(iv) Submissions, et cetera.” 49. These are appropriate adjustments during a long hearing where a party has fatigue or impaired concentration. 50. The written submissions continued, “The Claimant is entitled to see his Personal File. Therefore as an additional aides memoire, the Tribunal is respectfully invited to order the Respondent to disclose the file. Access to the contemporaneous evidence in the file will be an extremely useful adjustment for the Claimant's disability and also further ensure a fair trial.” 11 of 23 51. The purpose of tribunals making adjustments is to reduce disadvantages which the usual hearing process would cause to a person with a disability. The claimant did not explain how the personal file would help the claimant to overcome any such disadvantage. This looked, instead, like a request for disclosure of documents to uncover evidence that might assist the claimant’s case. Such a request could have been made any time in the last 8 years. Witness evidence - summary 52. The claimant’s supplemental bundle contained witness statements from five witnesses. The statements were dated between 11 and 13 December 2020. At least four of the witnesses are consultants in obstetrics and gynaecology. Here is a summary of what each witness had to say: 52.1. Miss Hervinder Kaur stated that her memory had not faded, despite having moved to Australia. She asserted that the claimant had been “ill for some time despite not saying so”. She described in general terms a shortage of staff at the time the claimant was dismissed. She repeated passages of her earlier witness statement, containing highly-generalised assertions about the way in which the claimant had been treated. 52.2. Ms Kadie Conteh described herself as a “concerned member of the public”. She vividly described the claimant’s medical intervention in a relative’s childbirth, which possibly saved the mother’s and baby’s lives. She addressed the respondent’s assertion that memories had faded, describing it as “a baseless excuse to further pervert the course of justice.” She stated that, at the time of the hearing in 2017, “witnesses did not claim to have faded memories,” and added the rhetorical question, “so why now?” Her statement did not explain how she came to know what was and was not being asserted by witnesses in 2017. She supported the claimant’s application to be allowed to provide a supplementary witness statement, saying, “Now that his health is improving, I believe he will be in a better position to provide a fuller statement.” 52.3. Mr Donald MacFoy repeated the contents of his original witness statement. After setting out paragraphs 15-21 (describing in quite general terms events that had taken place between July 2013 and April 2014), Mr MacFoy added, “I stand by all the documents relating to these incidents and concerns including the escalation mentioned above. My recollection of the above further serves to prove that my memories of these event[s] have not faded.” He made a number of legal arguments as to the fact-sensitive nature of discrimination and whistleblowing cases. 52.4. Mr A L Adegbite’s supplemental statement ran to 210 paragraphs. It repeated his earlier witness statement and went into considerably more detail. In particular, Mr Adegbite described what he was thinking at the time the claimant made his 16 alleged protected disclosures. He described why he believed the respondent’s actions to be detrimental and based on the claimant’s disclosures. He acknowledged that these details were not included in his original statement, explaining that the claimant had not had legal advice or support and had his health and other issues to contend with. 52.5. Mr E A D Manning did not work in the same Trust as the claimant. He observed that, in his experience, doctors would keep their illnesses confidential 12 of 23 in order to avoid “stigma”. He listed various documents which he had previously receive in the case. These totalled 1,856 pages. He observed that, having read the documents in the bundle, his memory of events had not faded. This point appeared to be aimed at the memories of other witnesses, since most of the documents that Mr Manning listed would not have been relevant to the evidence in Mr Manning’s original statement. Mr Manning supported the claimant’s request for a supplemental witness statement and for disclosure of electronic documents. Witness evidence - admissibility 53. Having considered what the witness statements had to say, I decided that the evidence was not admissible. This is because there is no evidence to suggest that the claimant could not have obtained these witness statements earlier. 54. The claimant had been told well in advance of my strike-out decision that one of the points I would be considering was the effect of past delays on the ability of witnesses to remember what had happened. In fact, the claimant was expressly invited to address this point. My case management order, sent to the parties on 17 July 2019, said this: “Effect of delay 14. At today’s hearing, Mr Hatfield made clear the respondent’s position that, even if the claimant were fit to attend the hearing in January 2020, the claim should still be struck out. 15. One of his submissions is that a fair hearing would be impossible, even if the hearing went ahead in January 2020. This is because of the effect of the delay up to now. The claimant’s employment ended on 31 July 2013, nearly 6 years ago. Of the 7 witnesses that the respondent wishes to call, one has moved to the United Arab Emirates, two have retired and three have gone to work for other NHS trusts. Even if these witnesses can all be found and brought to the tribunal, they would have to try and cast their minds back many years because of the length of time it has taken to get the case to a hearing. 16. The claimant’s written submissions do not engage with this point. In my view the claimant ought to have an opportunity to answer it. If he wishes, he can make further written submissions explaining how these obstacles to a fair hearing might be overcome.” 55. If the claimant had wished to provide statements from witnesses to assert that they could remember clearly, he could have done so between 17 July 2019 and 4 October 2019. Likewise he could have obtained evidence that the respondent’s witnesses had not moved and had not retired. The only explanation for the claimant’s failure to provide evidence was specific to the difficulties in getting Dr Pughe’s report from the surgery. There is nothing to suggest that he could not have approached the witnesses at that time. 56. The Ladd v. Marshall criteria for the admissibility of fresh evidence are not satisfied. The principle of finality of litigation must be respected. I accordingly refuse to admit the statements into evidence. 13 of 23 57. I have an additional reason for refusing to admit the statements. They were not provided until after the reconsideration hearing. The respondent has not had an opportunity to comment on them or test the evidence that they contain. I considered whether or not to relist the case for a further reconsideration hearing, in order for that exercise to be carried out. Taking that step would result in even more delay and would not help to achieve the overriding objective. Witness evidence - weight 58. In case my conclusion on admissibility is wrong, I have nevertheless formed an assessment of what weight I would give to the witness statements if they were to be admissible. 59. All five witnesses asserted that their memories had not faded. I would only have given limited weight to those assertions. This was for a number of reasons: 59.1. The respondent did not have the opportunity to comment on those assertions at the hearing, owing to the fact that the witness statements had been provided so late. 59.2. All witnesses appeared to be arguing the claimant’s case for him as well as describing what they had observed. 59.3. It is hard for a witness to be able to assess accurately and objectively how much their own memory has faded. 59.4. I was not convinced by the witnesses’ specific grounds for thinking that their memories were still fresh. Mr MacFoy appeared to think that their ability to remember what had happened was proved by the fact that he stood by his previous witness statement. Ms Kaur gave little more than a bare assertion. Ms Konteh used emotive language and appeared to have been influenced by facts that would have been hard for her to discover except from what the claimant had told her. Mr Manning’s reference to documents that would assist in recollection, but they bore little relation to the evidence he had to give. 60. When it came to the witnesses’ evidence about what had happened to the respondent’s witnesses, I would also have found it difficult to place much reliance on what the witnesses had to say. This was because the statements had been provided too late for them to be effectively challenged. Further information about the respondent’s witnesses 61. The claimant’s reconsideration application listed six of the respondent’s witnesses asserted that none of them had moved or retired, and stated the organisation for which they worked. The reconsideration application did not provide any information about Mr Amu’s whereabouts. 62. It will be remembered that the tribunal’s letter of 27 March 2020 required the respondent to provide information about its witnesses. The relevant witnesses were those whose statements were exchanged prior to the hearing in March 2017. That information was provided in the respondent’s further written submissions dated 27 November 2020. 63. I did not treat either party’s submission as evidence. It did not satisfy the Ladd v. Marshall criteria. Either party could have provided information about where the witnesses were before I made the decision to strike out the claim. 14 of 23 64. The purpose of requiring the additional information from the respondent was to establish what areas of agreement and disagreement existed as between the parties. I also wanted to establish whether or not the general assertions made by Mr Hatfield at the hearing on 9 July 2019 were supported by the detail of what had happened to each witness. 65. I can summarise the positions of the parties, starting with the common ground: 65.1. Both parties agree that three of the respondent’s witnesses still do some work for the respondent. These are Miss Preston, Ms Jain and Miss Barrett. 65.2. The parties are also agreed that, from October 2019 at the latest, Ms Moore has not been employed by the respondent. Her employer since that time has been Lancashire Mental Health NHS Foundation Trust. 65.3. It is agreed that Mr Wafer is no longer employed by the respondent. It is the respondent’s position that his new employer is Manchester University Hospitals NHS Foundation Trust. The claimant has named two different NHS Trusts (one of which merged into Manchester University Hospitals NHS Foundation Trust), which are outside the respondent’s organisation. 66. The parties are in dispute about what has happened to Miss Brophy. The claimant says that she is still employed by the respondent. That is denied by the respondent, whose position is that Miss Brophy retired in July 2019 and is now in an HR consultant in independent practice. 67. The main dispute relates to Mr Amu. Before I set out the parties’ positions, I need to revisit some of the procedural history. 68. This is not the first time that Mr Amu’s evidence has had to be considered. At the final hearing in March 2017, the tribunal made an order that Mr Amu attend to give evidence. The written reasons for that decision may help the reader of this judgment to understand the significance of Mr Amu’s whereabouts and the importance of his evidence. Relevantly, the reasons stated: “… 24.10 According to the [claimant’s Further and Better Particulars], Mr Amu, the respondent’s clinical director, was a recipient of most of the claimant’s protected disclosures and the alleged perpetrator of many of the detriments. … 30. Witness statements were in due course exchanged. Among the respondent’s witnesses was Mr Amu. In his witness statement Mr Amu confirmed that the claimant had raised concerns with him about Caesarean sections, although gave a different context to that set out in the [Further and Better Particulars]. He explained many of the incidents of which the claimant now complains. … 115. We now turn to Mr Amu. The application is made late, but that is not the claimant’s fault. The first time the claimant could have known that Mr Amu would not be giving evidence was on the second day of the 15 of 23 hearing. Until then he expected to be able to cross-examine Mr Amu and make use of the evidence already in his witness statement. 116. Mr Amu’s witness statement appears to be relevant. He has referred to some conversations he had with the claimant in which issues were raised which appear at least similar to the protected disclosures upon which the claimant relies. It is not inconceivable that the claimant could ask open questions of Mr Amu that might elicit detail that would support his case. The overriding objective would normally point towards the witness order being granted. 117. The respondent raises a point of jurisdiction. If Mr Amu is outside Great Britain, the tribunal has no power to make an order. We do not think this objection should stand in our way. The respondent has not provided any address for Mr Amu, or even told us what country he lives in. There is nothing as yet to substantiate the respondent’s belief that he is outside Great Britain. As the claimant points out, however, the respondent is in a far better position than he is to know where Mr Amu is actually living. In our view, the better course is to grant the order, subject to the right of Mr Amu or the respondent to apply to discharge it with evidence of his being overseas. 69. One of the points made by the respondent at the preliminary hearing on 9 July 2019 was that the delay had done incurable damage to the quality of the evidence. One example given orally by Mr Hatfield was that a witness (who must have been Amu) was working in the UAE. 70. The claimant’s reconsideration application asserted, repeatedly, that none of the respondent’s witnesses had gone to the UAE. Mr Amu did not appear in the claimant’s list of the respondent’s witnesses. It is the claimant’s position that Mr Amu is not one of the respondent’s witnesses, because the respondent indicated at the hearing in 2017 that it was not going to call Mr Amu. 71. The respondent’s latest written submissions set out the position in relation to Mr Amu is as follows: “Mr Amu was a critical witness for the Respondent in relation to those matters which are alleged by the Claimant. Unfortunately, it has not been possible to obtain a witness statement from him as Mr Amu left the employment of the Respondent many years ago, but after the events about which the Claimant complains. He is now practising and living in the United Arab Emirates so far as the Respondent is aware.” 72. During the hearing on 15 December 2015, the claimant informed me that Mr Amu was not in the UAE. I asked the claimant what his basis was for thinking that he was not in that country. The claimant replied that he had spoken to Mr MacFoy (one of the witnesses he proposed to call) and had been told that Mr Amu was not in the UAE. I asked the claimant where Mr Amu was in fact living. The claimant replied that he would need Mr Amu’s permission to tell the tribunal where Mr Amu was. Without Mr Amu’s permission, the claimant told me, he could not even say which country Mr Amu was in. The claimant told me that Mr Amu was coming to give evidence. His belief was based on a conversation that he had had with Mr Amu between exchange of witness statements and the 2017 final hearing. 16 of 23 73. I found it hard to accept what the claimant told me about Mr Amu. It would only be in an extreme case that a witness would think of their country of residence as a confidential secret, or that anyone could reasonably believe that that was what the witness thought. I also thought it unrealistic of the claimant to believe, based on a conversation sometime before March 2017, that a witness would voluntarily be giving evidence for the claimant at a hearing sometime after January 2021. At the hearing in March 2017, the claimant had clearly formed the belief that Mr Amu would not be attending voluntarily, whatever he might have been told prior to that date. If the claimant thought that Mr Amu would attend voluntarily, he would not have applied for a witness order. Discussion of claimant’s reconsideration grounds 74. Having examined the new material, I now consider the claimant’s grounds for reconsideration: (1) Delay in providing Dr Pughe’s report 75. I accepted that it was not the claimant’s fault that he had not obtained Dr Pughe’s report before October 2019. Hence my decision to admit the report into evidence. (2) Fitness to attend a final hearing 76. I accept Dr Pughe’s opinion that the claimant is currently fit to attend a final hearing. If I were to re-list the final hearing, there is a reasonable prospect that the claimant would attend. If I thought that that hearing could take place fairly, I would revoke the Judgment. (3) Respondent misleading the tribunal about failure to comply with an Unless order 77. Paragraph 15 of the respondent’s written submissions on 9 July 2019 stated, “This is not a case where the claimant failed to comply with an Unless Order on this occasion.” If I understand the claimant’s point correctly, he is arguing that, in this paragraph, the respondent was implying that the claimant had failed to comply with Unless orders on previous occasions. I did not think that that was what the respondent was trying to imply. The respondent’s submissions were accompanied by a timeline of events, which listed three Unless orders, but did not assert that any of them had been breached. 78. As it is, Employment Judge Ryan’s case management order, sent to the parties on 13 December 2016, stated that the claimant had “had to seek relief from sanctions on two occasions having had unless orders made against him.” This seems to suggest that, at some point in the past, the claimant did fail to comply with those unless orders, but succeeded in having them set aside. I am unsure whether that is actually what happened, or whether the claimant actually complied with the Unless orders by the original deadline. 79. In any case, the Judgment was not influenced by any belief on my part that the claimant had failed to comply with an Unless order. If I thought that that was what had happened, I would have recorded that fact in the Reasons. (4) Failure to comply with case management orders not deliberate 80. This argument engages with paragraph 49 of the Reasons. I found that the claimant’s breaches of orders had been deliberate and in full knowledge of the 17 of 23 potential consequences. The claimant argues that this case lacks the “hallmark of contumacy”, the missing hallmark being any failure to comply with Unless orders. His contention is that, by unsuccessfully resisting the respondent’s applications for Unless orders, and then complying with them, the claimant was demonstrating that his initial failure to comply had been unintentional. I disagree. The pattern was one of persistent late compliance with explanations that were either non-existent or rejected by the tribunal. I see no reason to alter my conclusion that the claimant intentionally failed to comply with orders, knowing what the consequences would be.

[81]I have considered at this stage whether or not there was a medical explanation for the claimant’s failure to comply. For the reasons I have given, Dr Pughe’s evidence does not persuade me that the whole pattern was caused by the claimant’s depression. Even if it were, there was very little the tribunal could have done about it, because the claimant did not inform the tribunal of his depression until December 2018.

[82]Even if the claimant’s non-compliance had been entirely unintentional, I would still need to look at the effect of the delay on the tribunal’s ability to hold a fair hearing. (5) Respondent to blame for past delays

[83]The claimant puts the argument this way: “The delay has largely been due to the Respondent’s repeated and persistent Applications for unnecessary and largely avoidable Preliminary Hearings; Case Management Orders; Unless Orders and Application to Strike out rather than exhibiting empathy or sympathy or flexibility or co-operation in accordance with the overriding objectives and Civil Reforms in the Higher Courts.”

[84]I have examined that assertion against what I know of the history of this claim. I took account of the claimant’s submissions. I also took into account the procedural history set out in the Reasons, the tribunal’s written reasons sent on 6 June 2017, the order of Employment Judge Slater following the 4 September 2014 hearing. As a check, I looked at the way in which the procedural history had been described by the Employment Appeal Tribunal in an appeal against an earlier order of Employment Judge Ryan (see UKEAT 0126/17). I am satisfied that it was not the respondent’s fault that there were so many delays. The claimant repeatedly failed to provide the information that he was ordered to provide. His explanations were rejected. The respondent was justified in applying for Unless orders. (6) Estoppel

Conclusions

[85]There is no estoppel here. The fact that the respondent did not appeal against previous postponement decisions just means that the respondent was bound by those decisions and could not later question the decision to postpone. (This is somewhat theoretical: as a matter of practical reality, once a tribunal has decided that it will not go ahead with a hearing, there is very little that either party can do about it.) But that would not stop the respondent from being able to complain about the delay to which that postponement has contributed.

[86]I understood that the claimant might be making a wider point, beyond the narrow principle of estoppel. Tribunals should be hesitant to allow a party to complain that a delay has made a fair hearing impossible if that party has itself contributed 18 of 23 substantially to the delay. That would provide an incentive to parties – especially respondents – to drag proceedings out for as long as they could. But the respondent has not been dragging out this case. By applying for unless orders, and resisting the introduction of further witness evidence, the respondent was attempting to progress the litigation, not slow it down. (7) Claimant urging EJ Ryan not to postpone

[87]I accept that, at a hearing before Employment Judge Ryan, the claimant urged the tribunal not to postpone the forthcoming hearing. The claimant’s request at that time has to be seen in its context. Employment Judge Ryan, in his written reasons sent on 13 December 2016, summarised the history of the claimant failing to comply with orders for exchange of witness statements. The postponement of the earlier hearing was because the claimant had not complied with tribunal orders. (8) Misleading the tribunal about a witness in UAE

[88]The respondent did not mislead me about Mr Amu being a witness. I was already aware that the respondent would not call Mr Amu at the final hearing. In the Reasons (paragraph 31.3) I included Mr Amu as one of the witnesses whom the respondent “wishes to call”. This was not because I thought that the respondent would call him, but because I thought that the respondent wanted to call him but could not, because he was out of their reach. Mr Amu was always going to be an important witness, for the reasons I have already set out. If the respondent had not wanted to call him, it would not have sent Mr Amu’s witness statement to the claimant in advance of the March 2017 hearing.

[89]There is no reliable evidence that the respondent has misled me about Mr Amu’s whereabouts. On the one hand I have the respondent’s assertion that he was believed to be in UAE. On the other, I have the claimant’s assertion that Mr Amu is not in UAE, but he will not tell me where Mr Amu actually is. For the reasons I have given, I cannot rely on what the claimant says about Mr Amu’s country of residence to support a finding that the respondent has misled me. (9) Conclusion about fading memories

[90]Despite the claimant’s arguments I still take the view that the delay must have caused memories to fade.

[91]I have already explained why I did not admit the evidence of the claimant’s witnesses that their memories are still fresh, and why I would not have given such evidence significant weight in any event.

[92]I have looked again at the effect of the delay on the respondent’s witnesses. I need to decide whether there is anything in the new material that would cause me to change my view about whether or not their recollection has diminished. My conclusions are as follows: 92.1. The respondent wished to call Mr Amu but is now unable to do so, for the reasons I have explained. The respondent has consistently maintained since 2017 that Mr Amu was working abroad. The claimant has not put forward any reliable evidence to the contrary. 92.2. It is common ground that Ms Moore and Mr Wafer now work for other Trusts. 19 of 23 92.3. There is a dispute about whether or not Mrs Brophy is still employed by the respondent. Having refused to admit evidence on that question, I have not tried to resolve it. Even if I were to conclude this point in the claimant’s favour, it would still leave three witnesses who have undoubtedly moved on from their employment with the respondent.

[93]I remain of the view (Reasons paragraph 63) that it is generally likely to be harder for a witness to remember events in the workplace if they have retired and moved to a new employer in the meantime.

[94]In any case, that was only one factor that I took into account. I also took into account the sheer length of the delay (Reasons paragraph 61) and the nature of the disputes about which oral evidence would have to be given (Reasons paragraph 62).

[95]The claimant seeks to compare this case with cases of clinical negligence resulting in injuries to babies, where the court may have to consider a claim issued nearly 21 years after the baby was born. The two cases are not comparable. Children are given until they reach the age of 18 before limitation periods start to run, because they do not have capacity to bring a claim their own until they reach adulthood. There is no suggestion that the claimant did not have capacity to pursue his claim. Moreover, clinical decisions and procedures are usually heavily documented. This claim is about conversations that took place, in which disclosures were allegedly made and the claimant was allegedly detrimentally treated. Notes would not usually be kept of such conversations. A third reason is that discrimination and whistleblowing complaints focus on the conscious or subconscious motivation of decision-makers. It is much easier for a decision-maker to explain what was going through his or her mind if they give evidence about it shortly after the event. Parliament has recognised the desirability of keeping delays in tribunal cases to a minimum. That is why the ordinary time limit for bringing a claim is three months and not three years as in personal injury cases.

[96]As part of my reconsideration, I did consider whether it would be possible to reinstate the claim purely in relation to those disclosures and detriments where the level of documentation was sufficient to protect against fading memories. I concluded that it would not be possible to disentangle the allegations in that way. One major obstacle stems from the way in which the claimant seeks to give evidence about his alleged protected disclosures. His witness statement, in one paragraph, referred wholesale to 71 pages of further and better particulars, in which he set out alleged disclosures without seeking to distinguish between faceto-face conversations and those that took place over the telephone. (10) Personal file

[97]The claimant has had since 2013 to make a request for disclosure of his personal file. I do not know what it contains, but it is purely speculative to imagine whether the contents would assist anyone in their recollection. (11) Access to e-mails

[98]I do not know whether e-mails from 2012-2013 are still retrievable. Even if they were, it would be pure speculation to try to imagine what e-mails might be disclosed and still more speculative to try and predict what beneficial effect those 20 of 23 e-mails might have on witnesses’ memories. The exercise of searching for relevant e-mails should have been completed years ago. Anything relevant ought to have been disclosed at that time. Further considerations Further delays since the Judgment

[99]One consequence of the Judgment was that the final hearing did not proceed in January 2020. By the time the claimant applied to have the Judgment reconsidered, that hearing had been cancelled. It would not have been appropriate to re-list the final hearing for January 2020 on receipt of the reconsideration application. This was for two reasons. First, the cancellation of the 2020 final hearing resulted in other claims being listed for hearing to fill the available capacity. Those hearings would have needed to be postponed. Second, there needed to be reconsideration hearing before the final hearing could take place. Even if the reconsideration hearing could have been listed for late 2019 (which in turn would have put pressure on other cases), there was little prospect of the parties being ready for a final hearing in January 2020 in the event of the claim being reinstated. As at the date of the reconsideration application, the parties were not ready for a final hearing. The claimant’s reconsideration application included requests for adjustments such as supplemental witness statements, advance lists of cross-examination questions, access to the respondent’s e-mail accounts and disclosure of the claimant’s personal file.

[100]There has been additional delay caused by the COVID-19 pandemic. Needless to say, that delay was not either party’s fault. When could a hearing be re-listed?

[101]The ability of the tribunal to re-list a case quickly depends on its time allocation. The longer a hearing is expected to take, the further into the future it has to be listed in order to avoid postponing other cases.

[102]My starting point is that the 2017 final hearing was listed for 15 days (although it was later reduced to 12 days to accommodate difficulties with judicial availability). Having spent 6 days reading the witness statements, dealing with the claimant’s numerous applications, and clarifying the issues, the tribunal adjourned the hearing part-heard for a further 15 days. The allocation of 15 further days was based on the assumption that the existing tribunal, already being very familiar with the case, would not need as much reading time as a freshly-constituted tribunal would need.

[103]It is no longer practicable for a final hearing to be resumed part-heard. It is nearly four years since the tribunal read the documents. One of the non-legal members of the panel has, for all practical purposes, fully retired. A fresh panel and a fresh start would be needed.

[104]It would not be appropriate to take short cuts with tribunal reading time. As the claimant himself observed about the 2017 final hearing in his written submissions: “Further, the time allowed for the Tribunal to read the Bundles was grossly underestimated.”

[105]I anticipate that at least two days of reading time would be needed in addition to the 15 part-heard days allocated in 2017. 21 of 23

[106]The additional 15 days listed in 2017 were allocated on the assumption that the tribunal would take its usual breaks and would start at 10.00am. That assumption would need to be revisited. The claimant would need an 11.00am start and additional breaks. If the hearing were to be re-listed now, it would need to include additional days to reflect the reduced length of each day. At least three further days would be needed for that adjustment. There would also need to be at least three additional one-day breaks between the different stages of the hearing.

[107]I have no reason to think that the claimant could conduct a final hearing any more quickly in future than he did in 2017. There has been little or no improvement in the claimant’s ability to keep to a hearing timetable. During the reconsideration hearing on 15 December 2020 the claimant overran the time allocated for his oral arguments. I twice allowed him further time, and he overran both those extended time limits. This is a repeat of what happened during the final hearing in 2017. (The tribunal’s description of what happened at that hearing is set out in paragraphs 46 and 47 of the written reasons for the judgment sent to the parties on 28 March 2017.)

[108]Another tendency that does not appear to have improved is the claimant submitting documents after the deadline for doing so. The claimant has had since October 2019 to assemble witness statements in support of his reconsideration application. A previous reconsideration hearing was adjourned on 18 November 2020. Yet the claimant did not start faxing the witness statements to the respondent until 4.58pm after the reconsideration hearing had concluded.

[109]These tendencies would have to be taken into account when trying to predict how long a future final hearing might take.

[110]The making of adjustments would be unlikely to stop the claimant from conducting the proceedings in this manner. The reconsideration hearing incorporated many of the adjustments that the claimant is seeking for the final hearing. In particular, the hearing started at 11.30am and included a 30-minute break before it finished at 2.20pm. Yet the claimant still repeatedly overran his time allocation and submitted documents late.

[111]By my calculation, a final hearing would now need to be listed for a minimum of twenty days, spread over five weeks.

[112]The earliest available continuous five-week slot is in September 2022. If I were to try to list the case earlier than that, it would create an unacceptable risk of having to postpone long hearings in other cases. The claimant suggests that a final hearing could be listed sooner by listing it in separate blocks of 3-4 days each. I have looked into that possibility. In my view, it would not significantly improve the prospect of an early listing. For example, if I were to list the case to begin in October 2021, it would involve having to float a number of allocated 3-4 day hearings. Those hearings are in claims that were presented in 2018, 2019 and early 2020. Parties who have already waited over a year to have their claims heard would have to be told that their hearings, nine months from now, might not necessarily be able to go ahead.

[113]I therefore approach my reconsideration decision on the basis that, if the claim were to be reinstated, the final hearing would not take place until mid-2022 at the earliest. By that time, it will be 9 years since the claimant’s employment with the 22 of 23 respondent ended and 11 years since he started making alleged protected disclosures. It is not fair to expect either party’s witnesses to cast their minds so far back.

Conclusion

[114]I remain of the view that a fair hearing is no longer possible, despite the improved prospects of the claimant being able to attend.

[115]In those circumstances it is not in the interests of justice to revoke the Judgment. The claim therefore remains struck out.