Ms S Turner v Vinci Construction UK Ltd: 2412131/2023

EMPLOYMENT TRIBUNALS

Case No 2412131/2023

Between

Ms S TurnerClaimant

Vinci Construction UK LtdRespondent

Before

Employment Judge Bradford

In person for claimant

Ms L Whittington for respondent

Date 16 December 2024

JUDGMENT

[1]The Claimant’s claim of unfair dismissal is dismissed, as she does not have the required 2 years’ service in accordance with s108 Employment Rights Act 1996.

[1]The claimant was not harassed in relation to her sex. Therefore, her claim under s26 Equality Act 2010 fails and is dismissed.

[2]Two deposit orders for £150 each being made by Employment Judge Bradford on 12 August 2024, pursuant to rule 39 of the Employment Tribunal Rules of Procedure, and the total deposits of £300 being paid by the claimant to the Employment Tribunal on 27 August 2024, the claimant acted unreasonably in pursuing her claims of harassment, pursuant to rule 76. The claimant is ordered to pay the respondent’s cost in the sum of £4,500. The deposit paid of £300 shall be paid to the respondent. Consequently, the claimant is ordered to pay the respondent the balance in the sum of £4,200.

[3]Proceedings are now concluded. JUDGMENT and reasons having been given at the hearing and Judgment having been promulgated shortly thereafter, written reasons have been requested by the claimant in accordance with Rule 60(4) of the Employment Tribunal Procedure Rules 2024. The reasons are set out as follows.

REASONS

These written reasons have been delayed by my, i.e. the judge’s, sickness absence. I apologise to the parties for this delay, and I have written to them separately. The case

[1]The claim form was presented on 29 November 2023 after a short period of ACAS early conciliation from 15 to 17 November 2023. On 12 August 2024 Employment Judge Bradford allowed an application to amend the claim to bring two claims of harassment related to sex in respect of the following allegations: i. 3 October 2023 David Smolinsky, when a subcontractor had sprayed the claimant’s car with paint, tried to pressurise the claimant into allowing Dagger Dan the mobile valet appointed by John Maguire1, to use dangerous chemicals on the claimant’s car. ii. On 25 October 2023 when the claimant went to the senior commercial manager Barry Powell in its office and said her car had been keyed, he said “what to what the to do Sue? I can't stop him (John Maguire) emailing”.

[1]There are various versions of this individual’s name. This is the correct version, which was also used by the claimant and Mr Powell.

[2]In allowing these amendments Judge Bradford also made deposit orders of £150 per allegation. The claimant paid her deposits on 27 August 2024.

[3]Other various allegations and claims were made by the claimant, which were summarised by Employment Judge Ross on 1 May 2024 and Judge Bradford on 12 August 2024. The two claims identified in paragraph 1 above were the only claims that were permitted to proceed to the final hearing.

The hearing

[4]A list of issues had helpfully been prepared by Judge Bradford [see hearing bundle page 83]. This summarised the factual dispute and the legal tests. The tribunal reviewed the list of issues with the parties at the start of the hearing. The list of issues referred to time limit matters which both parties agree were not in dispute so as we (i.e. the tribunal) did not need to address this and I removed this from consideration.

[5]We were provided with a hearing bundle of 299 pages. I advised the parties at the commencement of the hearing that, as a matter of course, employment tribunals do not read the entire hearing bundle. If a document was important and relevant then that document needed to be referred to us, either in a witness statement or being specifically referred to the Tribunal at the hearing. We read the witness statements and some documents in advance of hearing “live” evidence.

[6]We heard direct (i.e. oral) evidence from the claimant. The claimant confirmed her written statement at the outset of her evidence. The claimant was crossexamined on her statement by the respondent’s counsel, and we also asked questions for clarification.

[7]The respondent provided 2 witnesses: Mr David Smolinski, who was at the relevant time, the respondent’s Senior Construction Manager, and Mr Barry Powell, a Senior Commercial Manager. Both respondent’s witnesses were identified in the allegations. Mr Smolinski and Mr Powell had also prepared written statements which they confirmed at the start of their evidence and they were similarly cross-examined by the claimant and asked questions by the tribunal.

[8]Having heard the totality of the evidence we make the following determination. We make these comments in order for the parties to understand why we preferred the evidence of one side rather than the other, where the accounts conflicted and where it was necessary to address discrepancies.

[9]We were dissatisfied with the claimant account of events, and we did not regard the claimant as a reliable historian. We determined that her perception of events has been tainted by her negative feelings towards the respondent. The claimant was evasive during her evidence and, despite being warned many times of possible adverse inferences, at some key times she failed to provide a straightforward response to a straightforward question. The claimant also declined to answer some key questions where we adjudge it would negatively impact upon her case.

[10]Of significant relevance, the claimant contended that an email sent by Mr Powell [Hearing Bundle page 168] had been fabricated. This allegation should have been raised in her statement when it could be addressed long before the hearing. The allegation first arose in cross-examination at the hearing. The claimant could not provide any convincing reason why the respondent representatives or witnesses might falsify material. The email in question was consistent with later emails, and it was also consistent with Mr Powell’s version of events. Furthermore, if the respondent was to fake documents, then it is likely that this would be manufactured to be more beneficial to the respondent’s case. This allegation significantly undermined the claimant’s credibility.

[11]In contrast, the Respondent’s witnesses gave measured and straightforward evidence that was consistent with the contemporaneous documents. Their accounts were consistent with each other and consistent with what we would anticipate as a credible narrative. Both Mr Smolinski and Mr Powell were clear when they could not recollect matters, and this heightened their credibility further. Where there was a dispute in the version of events between the claimant and Mr Smolinski and Mr Powell, we preferred the evidence of the respondent witnesses.

The relevant law

[12]The definition of harassment is set out in s26 Equality Act 2010 (“EqA”). The relevant provisions are as follows:(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2) …

(3) …

(4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

[13]S136 EqA implements the European Union Burden of Proof Directive. This requires the claimant to prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of unlawful discrimination, and it is then for the employer to prove otherwise. The cases of Barton v Investec Henderson Crosthwaite Securities Ltd

[2003] ICR 1205

and Igen Ltd v Wong

[2005] EWCA Civ 142

[2005] ICR 931

provide a 13-point form/checklist which outlines a two-stage approach to discharge the burden of proof. In essence, this can be distilled into a 2-strage approach:a. Has the claimant proved facts from which, in the absence of an adequate explanation, the tribunal could conclude that the respondent had committed unlawful discrimination?

b. If the claimant satisfies (a), but not otherwise, has the respondent proved that unlawful discrimination was not committed or was not to be treated as committed?

[14]The Court of Appeal in Igen emphasised the importance of could in (a). The claimant is nevertheless required to produce evidence from which the tribunal could conclude that discrimination has occurred. The tribunal must establish that there is prime facie evidence of a link between less favourable treatment and, say, the difference of sex and that these are not merely two unrelated factors: see University of Huddersfield v Wolff

[2004] IRLR 534

. It is usually essential to have concrete evidence of less favourable treatment. It is essential that the employment tribunal draws its inferences from findings of primary fact and not just from evidence that is not taken to a conclusion: see Anya v University of Oxford

[2001] EWCA Civ 405

[2001] ICR 847

[15]So, the burden is on the claimant to prove, on a balance of probabilities, a prima facie case of discrimination. The Court of Appeal, in Madarassy v Nomura International plc

[2007] EWCA Civ 33

at paragraph 56 said the court in Igen expressly rejected the argument that it was sufficient for the complainant simply to prove facts from which the tribunal could conclude that the respondent could have committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination. It was confirmed that the claimant must establish more than a difference in status (e.g. sex) and a difference in treatment before a tribunal will be in a position where it could conclude that an act of discrimination had been committed.

[16]Even if the tribunal believes that the respondent’s conduct requires explanation, before the burden of proof can shift there must be something to suggest that the treatment was due to the claimant’s sex. In B and the claimant v A

[2010] IRLR 400

EAT at paragraph 22: The crucial question is on what evidence or primary findings the tribunal based its conclusion that the claimant would not have feared further violence from a female alleged aggressor (and so would have accorded her due process). As we have already noted (paragraph 19), the tribunal does not spell out its thinking on that point. There was no direct evidence on which such a conclusion could be based; no such situation had ever occurred, and the tribunal refers to no admission by C, or other evidence of his attitudes, that might have supported a view as to how he would have behaved if it had. It is of course true that the tribunal was in principle entitled to draw appropriate inferences from the nature of the behaviour complained of. C’s behaviour was certainly sufficiently surprising to call for some explanation: in the public sector in particular, it is second nature to executives to follow appropriate procedures, and the explanation offered by the claimant for his failure to do so in the present case – namely that he was seeking to avoid repeat violence (see paragraph 16 above) – is irrational since he could have mitigated the risk to precisely the same extent by suspending the claimant. But the fact that his behaviour calls for explanation does not automatically get the claimant past ‘Igen stage 1’. There still has to be reason to believe that the explanation could be that that behaviour was attributable (at least to a significant extent) to the fact that the claimant was a man. On the face of it there is nothing in C’s behaviour, all the surrounding circumstances, to give rise to that suspicion.

[17]It is not sufficient to shift the burden onto the respondent, that the conduct is simply unfair or unreasonable if it is unconnected to a protected characteristic. In St Christopher’s Fellowship v Walters-Ellis

[2010] EWCA Civ 921

at paragraph 44: The respondent’s bad treatment of the claimant fully justified findings of constructive unfair dismissal, but it could not, in all the circumstances, lead to a finding, in the absence of an adequate explanation, of an act of discrimination. Non-racial considerations were accepted as the explanation for the respondent’s similar treatment of the claimant in the other instances in which the claimant alleged race discrimination in relation to participation in recruitment. In the case of Ms Hayward, the respondent made a genuine mistake about the nature of the relationship, which they would not have made if they had properly investigated the nature of the relationship with the claimant and communicated with her, but their failure to do so was accepted to be the result of a genuine belief. The fact that it was mistaken could not, in the context of scrupulous attention to recruitment procedures, reasonably be held to have the effect of indicating the presence of racial grounds and so shifting the burden of proof to the respondent to prove that he had not committed an act of race discrimination.

[18]Employment Tribunal’s adopt the civil standard of proof, which is on the balance of probabilities, i.e. more likely than not.

[19]The Employment Appeals Tribunal (“EAT”) in Richmond Pharmacology Ltd v Dhaliwal

[2009] ICR 724

provided guidance on the objective standard which is required to amount to harassment. Notwithstanding this case dealt with race discrimination, the logic still applies to harassment on the grounds of sex. … A respondent should not be held liable merely because his conduct has had the effect of producing a proscribed consequence: it should be reasonable that that consequence has occurred. That…creates an objective standard…. Whether it was reasonable for a claimant to have felt her dignity to be violated is quintessentially a matter for the factual assessment of the tribunal. It will be important for it to have regard to all the relevant circumstances, including the context of the conduct in question. One question that may be material is whether it should reasonably have been apparent whether the conduct was, or was not, intended to cause offence (or, more precisely, to produce the proscribed consequences): the same remark may have a very different weight if it was evidently innocently intended than if it was evidently intended to hurt.” “22…We accept that not every racially slanted adverse comment or conduct may constitute the violation of a person’s dignity. Dignity is not necessarily violated by things said or done which 5 are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase…

[20]The Equality & Human Rights Commission Employment Code at paragraph 7.8 provides: The word ‘unwanted’ means essentially the same as ‘unwelcome’ or ‘uninvited’. ‘Unwanted’ does not mean that express objection must be made to the conduct before it is deemed to be unwanted. A serious one-off incident can also amount to harassment.

[21]However, the tribunal must assess whether the conduct had reached the necessary degree of seriousness. The EAT considered that it must be careful not to “trivialize the language of the statute” in General Municipal and Boilermakers Union v Henderson

2015 IRLR 451

, EAT. The context of the comments or actions are relevant to the Tribunal’s assessment of whether it amounts to unlawful harassment. Land Registry v Grant (Equality and Human Rights Commission intervening)

2011 ICR 1390

CA stated that: “Everything depends upon the particular circumstances. So, for example, it will generally be relevant to know to whom the remark was made, in what terms and for what purpose.”

[22]As required by the statutory wording in section 26(1)(a), the conduct must be related to the protected characteristic. The EAT in Hartley v Foreign and Commonwealth Office Services [2016] 5 WLUK 652 reiterated that this was not akin to “but for” causation but whether the conduct was related to the protected characteristic when conducting an evaluation of evidence in the round.

[23]Where direct reference is made to the employees protected characteristic, such as an overtly sexist comment, then the necessary causal link will be made out. However, the tribunal cannot reverse the burden of proof in accordance with s136 where a claimant cannot establish a prima facie case that the conduct was related to a protected characteristic. In Raj v Capita Business Services Ltd [2019] 6 WLUK 781, the EAT held that establishing the other elements of the statutory test was not sufficient to shift the burden of proof or where a Tribunal had rejected the Respondent’s evidence as to what occurred. The Tribunal should properly analysis whether the “protected characteristic was the reason for/ related to the conduct complained of”.

Findings of fact

[24]We set out the following findings of facts, which were relevant to determining whether or not the claims and issues identified above have been established. We have not determined all of the points of dispute between the parties, merely those that we regard as relevant to determining the issues of this case as identified in the list of issues. When determining certain findings of fact, where we consider this appropriate, we have set out why we have made these findings.

[25]In assessing the evidence and making findings of fact, we placed particular reliance upon contemporaneous documents or near contemporaneous documents as an accurate version of events. We also place some emphasis (and drew appropriate inferences) on the absence of documents that we expected to see as a contemporaneous record of events. Witness statements are, of course, important. However, these stand as a version of events that was completed sometime after the events in question and are drafted through the prism of either advancing or defending the claims in question. We are mindful that professionally drafted statements might be perceived as giving a represented party an advantage. So, we regard witness statements with a degree of circumspection as both memories fade and the accounts may reflect a degree of re-interpretation.

[26]The claimant worked for the respondent as a site administrator from 13 March 2023 to 31 October 2023. The claimant worked on a site in King Street, Blackpool. The site had designated parking, and the claimant drove to work. The claimant had purchased a new car, a mini, and she parked her car in an approved parking space.

[27]On Friday 13 October 2023 some subcontractors while working at the site accidentally sprayed intumescent paint on cars parked in the car park. A number of cars were affected. The claimant’s car was one of those damaged and the sub-contractor responsible was called JM Passive.

[28]The claimant spoke to Mr Smolinski and Mr Powell on the following Monday, 16 October 2023, and she thereafter liaised with JM Passive to address the problem. The claimant engaged in correspondence with JM Passive by email between 16 October and 25 October 2023 [see HB102-105, 137, 144-150, 151- 153].

[29]The respondent initially stopped JM Passive working at the site. The Managing Director of JM Passive, Mr John Maguire, attended the site, apologised and offered staff a valeting service to look at their cars. The claimant was unhappy with this measure and obtained a quote from the mini dealership which included panel replacements and a partial respray. The bill was high, so it was not unreasonable for JM Passive to question this, particularly as possibly nine people had their cars seen by Dagger Dan.

[30]The claimant accepted in oral evidence that the concerns about the car damage were being discussed generally in the office by staff and she participated in these discussions. We do not see anything untoward in this as it must have been a matter of keen interest to staff in the building; initially at least.

[31]An exchange occurred between the claimant and Mr Smolinski in the kitchen on 23 October 2023. Mr Smolinski said (which we accept) “I don’t know why you don’t let them try and clear your car”. The claimant was annoyed by this comment so Mr Smolinski then said that she should “do what you want then”. Mr Powell’s account is consistent with the claimant’s statement where “he then asked me if I could consider having my car valeted with Dagger Dan” [see paragraph 20].

[32]The claimant was unable to resolve the dispute with JM Passive and so Mr Powell made enquiries with the respondent’s insurance department to ascertain whether the respondent could assist [HB134].

[33]A second incident occurred a few days later, on 24 October 2023 [see HB110 and the evidence of Mr Powell and Mr Smolinski]. The claimant took to parking her car in the Sainsbury’s car park nearby. Her car was scratched or “keyed” [HB115].

[34]The claimant was upset about this and spoke to Mr Powell on the next day. He made a reasonably contemporaneous note a few hours later [see HB168 and 174]. The claimant’s statement at paragraph 29 contrasted with Mr Powell’s version at paragraphs 30 to 34.

[35]Mr Powell was clear that the claimant was concerned about her car being keyed and that she accused or, at least, imply that this was done by someone from JM Passive. Mr Powell said he said “what do you want me to do about it” but that was with reference to the scratched or keyed car, which we accept. The claimant contended that Mr Powell’s comment was in reference to stopping Mr Maguire sending emails to her. We prefer to rely upon Mr Powell’s version of events.

[36]The claimant’s suggestion of JM Passive involvement was speculation. We do not believe that this was credible speculation because we cannot see Mr Maguire, or anyone else from JM Passive, risk criminal damage to a complainant’s car in such circumstances. It is not feasible that someone from JM Passive would hunt down the claimants’ car in a local supermarket car park to damage this because the claimant would not accept her trying out Dagger Dan’s valet service. We determine to the contrary, that Mr Powell was, in fact, supportive in this meeting as he offered to go with the claimant to look for cctv footage.

[37]On 25 October 2023, Mr Powell sent an email to other managers in the respondent business setting a summary of what was discussed [HB168] and he sent an email to Mr Maguire asking for communications to cease as a claim was being made to the respondent’s insurers [HB143]. The claimant’s car was subsequently repaired, and a claim was made on the respondent’s insurance.

[38]On 23 October 2023 a conversation happened in the canteen with Mr Smolinski. The claimant's evidence is set out at paragraph 20 of her witness statement. This contrasted with Mr Smolinski’s account at paragraph 19 of his statement. We preferred the evidence of Mr Smolinski’s account as that was consistent with contemporaneous documents and presented as a more credible narrative. Mr Smolinski accepted that claimant was (quite rightly) annoyed with the sub-contractor. We believe Mr Smolinski that the claimant had been going on and on about her car, as consistent with the email correspondence. The claimant was preoccupied by this matter. The claimant felt that she was hard done by. She used emotive language which exaggerated a fairly straightforward situation. However, the facts as we find do not bear out that Mr Smolinski tried to pressurise the claimant into the Dagger Dan option. The damage was done by a third party; he was not directly involved. Perhaps he was fed up with the claimant’s complaining. However, he merely suggested a possible solution, and he was surprised by the level of the claimant’s annoyance. Mr Smolinski merely proffered a sensible suggestion.

[39]In any event, according to the claimant’s statement she did not know that “dangerous chemicals” would be used until the next day; so, there could have been no reference to dangerous chemicals in this exchange. The facts do not bear out this allegation.

[40]Issue 2.1.1 fails on the facts, Mr Smolinski did not pressurise the claimant to allow Dagger Dan to use dangerous chemicals on her car. Issue 2.1.2: The allegation at paragraph 1(ii) above

[41]As referred to above, Mr Powell was clear in his answers to questions. Where he did not know answers, he said so. Mr Powell was a credible witness, and we believed him. We believed him when he said that the claimant was more upset about the car damage than from emails sent by John Maguire.

[42]So, the conversation was predominantly about the keying of the claimant’s car. We do not accept Mr Powell said what do you want me to do about the emails, and we reject the assertion that he said that he could not stop Mr Maguire emailing the claimant as he did precisely that a few hours later when he wrote to everyone, including the client to stop the emails and said that the insurers would deal with matters. Issues 2.2 and 2.3: unwanted conduct and related to sex

[43]The claimant initiated the discussions with Mr Smolinski about the paint spraying incident and the comments made by Mr Smolinski (which is consistent with the claimant’s version) were innocuous. They arose from Mr Smolinski asking the claimant why she did not try the valet service, in the context of discussions between colleagues about the paint spraying incident. There was no overt pressure, threat or intimidation that there would be any consequence if the claimant did not agree with Mr Smolinski.

[44]This cannot be properly read as amounting to unwanted conduct. In accordance with Henderson above, we should not trivialise the language used and must consider whether there is a sufficient degree of seriousness in the broader context the discussions. The fact that the claimant was unhappy that she had been asked to consider using the Dagger Dan service does not mean it amounts to unwanted conduct, it falls well short of this threshold.

[45]The claimant said that she was bombarded and intimidated by three people at JM Passive but particularly John Maguire. We looked closely at all of the email exchanges, but particularly pages 144 to 153 of the hearing bundle. All of the emails are in response to the claimant’s emails. There were four emails from John Maguire, one from Thomas Newcombe, plus 2 from Beth Ardrey, although that was earlier. All emails from JM passive were professional, they suggested that valet work put right the damage for others and asked the claimant to try this first. JM passive wanted to pay for the valet and then assess afterwards. Notwithstanding, it is not our role to resolve the dispute about car damage, the emails emanating from the subcontractor appeared to the tribunal to be a measured, professional and sensible response. The claimant was not bombarded. There was no barrage of emails as claimed. The claimant was not harassed from JM Passive.

[46]So given this context and Mr Powells counterfactual explanation (which we accept) it is not possible to read that the allegation related to Mr Powell amounted to unwanted conduct related as we do not accept that Mr Powell made any reference to emails during this conversation.

[47]We cannot see how either incident related to the claimant’s sex either.

[48]The claimant was adamant that only seven or eight cars were affected by the paint outrage, and all cars so affected were owned/driven by male colleagues. We determined there were 10, possibly more, cars involved because of two paint incidences, the second in close proximity because WhatsApp messages from Jake Fuller identified 10 people and two female colleagues were named and referenced by job title. Mr Powell also compiled list, and he should know. When pressed he could remember the make of the two women's vehicles. It also sounded credible that of 10 cars were affected, then more than one woman would be affected, notwithstanding the workforce was predominantly male. But that said, the paint spray incident(s) were accidents. It was not deliberate, so the sex of the car owners had marginal relevance.

[49]When challenged on both allegations and how they related to sex, the claimant could not articulate how the alleged comments were related to her sex despite trying to assert that this was evident as she was the only woman affected.

[50]There is no link or implication that any discussion that did take place on either occasion was related to the claimant’s sex and the claimant did not advance any positive case in this regard despite this strongly featuring in case preparation, the list of issues and in questions from the tribunal.

[51]As there is no prima facie case that the comments related to sex, s136 and the reversal of the burden of proof is not engaged. The tribunal must establish that there is prime facie evidence of a link between Mr Smolinski’s and Mr Powell’s contended behaviour and the difference of sex and that these are not merely two unrelated factors in accordance with University of Huddersfield v Wolff (see above). There is no clear evidential basis to engage s136 EqA. Issue 2.4 and 2.5: harassment defined

[52]It was not put to either Mr Smolinski or Mr Powell that their comments had either the purpose or the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant.

[53]The discussions with Mr Smolinski were in the context of the claimant wanting to discuss the paint spraying incident and as made clear from the above this could not have the effect of creating the prescribed effect.

[54]In relation to 25 October 2023 allegation, it is even more difficult to understand how the comment said by Mr Powell could have the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant. Mr Powell was trying to support and assist the claimant and, which the claimant accepted, he did intervene and ask Mr Maguire to cease communications to deal with the respondent’s insurance.

[55]The test is objective and not purely based on the claimant’s own perception or sensitivities. The test is not whether the comments could be perceived as negative or critical, but whether a reasonable person would consider they had that effect when taking into consideration the broader context and circumstances of the discussions. It is difficult to understand how the comments could have the effect of creating the prescribed environment, so we dismiss the case on this basis also. Summary

[56]We reject the claims on the facts of the case and also on all elements of the legal tests. These claims had no merit. Costs

[57]Rule 39 Employment Tribunal Rules of Procedure 2013 dealt with deposit orders:(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.

(2) The Tribunal shall make reasonable enquiries into the paying party's ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.

(3) The Tribunal's reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order.

(4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out. Where a response is struck out, the consequences shall be as if no response had been presented, as set out in rule 21.

(5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order— (a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and2 (b) the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded. 2 My emphasis

(6) If a deposit has been paid to a party under paragraph (5)(b) and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order.

[58]Rule 39 provided a power for targeted case management to discourage parties (i.e. the claimant in this case) from pursuing weak claims or weak elements in their case. The deposit orders were imposed to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs if the claim failed.

[59]Judge Bradford allowed the amended claims but assessed the claimant’s claims had little prospect of success and imposed the deposit orders. That was legitimate policy because claims with little prospect cause unnecessary costs to be incurred and time to be spent by the opposing party. In addition, such claims also occupy the limited time and resources of Employment Tribunals that would otherwise be available to other litigants: see Hemdan v Ishmail and anor

2017 ICR 486

[60]The respondent asked that we deal with costs at this hearing on the basis that this had been advised to the claimant well in advance of the hearing. The case was listed for two days, and we had sufficient time to determine the respondent’s application after I gave judgment, and we were satisfied that the claimant was aware that the respondent was making such an application. The claimant absented herself for this application. The clerk searched the premises and discovered the claimant had left the hearing during the break. There was no medical or other reason or evidence available to justify departure as it was made clear before the break that the hearing had not concluded and that we had sufficient time to hear this application.

[61]The respondent’s counsel said, which we accept, that the basis of the application was well trailed in correspondence prior to this hearing, culminating in an email sent this week. We were well within hearing time so that we could consider the application and it was within the overriding objective to hear this application. Indeed, if we did not hear the application today, then the parties would be put to further unnecessary time and costs, and an extra sitting day for the tribunal would follow which was wholly unnecessary. The claimant was not entitled to absent herself from proceedings prematurely. Accordingly, we preceded in the claimant’s absence; in so doing we were minded that the respondent’s application was modest, and the respondent pursued a limited proportion of the costs to which they otherwise might have claimed, and could be entitled to.

[62]The respondents sought reimbursement of their counsel’s fees, which amounted to £4,500 plus vat. The respondent’s representative requested that deposit already paid go to discharge this amount, so that the balance to pay would be £4,200.

[63]Judge Bradford had concerns about the merits of the claim, which is why she made the order. We were satisfied that the judge explained the consequences of the order when taking such a step. We were also satisfied that the respondents had also explained the consequences to the claimant of such a measure. The respondent had also encouraged the claimant to seek legal advice.

[64]Under rule 39(5)(a) the claimant was deemed to have acted unreasonably. We could not think of any possible reason for the contrary. The claimant had lost the case on every count – facts and legal tests. Her version of events was not believed and, even if we had accepted it, we could not see how these allegations could amount to harassment or how any possible harassment could be on the grounds of sex.

[65]Allegations of harassment on the grounds of sex are serious, the two managers concerned were senior employees and if there was merit in such applications then they could have been career inhibiting. Such allegations were clearly upsetting for those on the receiving end to respond. So the allegations were serious. It is difficult to dispute the respondent’s counsel’s contention that this case completely wasted the tribunal’s time. Time that could be spent dealing with disputes with some merit. There was no merit in these allegations.

[66]In respect of quantum, we were advised that the respondent’s overall cost was well in excess of £20,000 plus vat, which appeared modest in such a case. The type of discrimination alleged justified sufficiently senior counsel and, we regarded counsel’s fees of £4,500 plus vat as reasonable. Had the respondent pursued a higher amount then we were likely to award more than just counsel’s fees so under the circumstances we regarded this amount as very modest.

[67]We award the respondent the amount sough of £4,500 inclusive of the deposit already paid. Approved by