Ms L WardClaimantManchester City CouncilRespondent
Before
Tribunal Judge HoltDate 22 May 2025
JUDGMENT
The unanimous judgment of the tribunal is that the respondent’s application to strike out the claim is rejected.
REASONS
(1) The was listed for a final hearing (19, 20 & 21 May 2025). However, the case did not proceed to a final hearing because on 19 May 2025 the Respondent submitted that the Claimant had not complied with previous Tribunal Directions/Orders, as a result of which, the Respondent submitted, the list of issues was insufficiently clear. Consequently, the Respondent made an application for the Tribunal to strike the case out based on their written application made in writing on 28 April 2025.(2) The context of the application (including the procedural background which will be dealt with in more detail below) is that at the beginning of the hearing we had been provided with a hearing bundle of 303 pages, a file of witness statements and various loose documents from both parties which, we were told, would be subject to applications to be considered in the final hearing. We were also provided with a chronology and a list of issues documents as well as the application to strike out [also at 299-303]. We did not read the witness statements, and we did read the bundle other than to look at parts of a few documents that we were taken to in the course of the application. I highlight this to emphasise that there was incomplete consideration to the factual matters and underlying evidence in this case when we were asked to make our decision regarding strike out.(3) For clarity, an application to strike out was referred to in several one-page letters sent to the Tribunal, presumably with the copies sent to the Claimant, from February 2025. These letters were very general and did not go into the details of why the Respondent wished to apply to strike the case out. The formal application which we dealt with was a 5-page document which descended into a great deal more detail than the letters. It was unclear for how long the Claimant had been aware of the 5-page application but she was aware that the Respondent wished to apply her claims out. The Claimant did not prepare any written arguments or provide any documents on the strike-out application which she resisted by making submissions and answering questions from me.(4) We heard submissions and arguments relating to the strike out application and the panel deliberated on 19 May. On 20 May 2025 we delivered our decision.(5) The Claimant has brought her claim alleging discrimination on the basis of her disability, age, and race under the Equality Act 2010. The Respondent admits that the Claimant is a person with a disability as defined by section 6 of the Equality Act 2010. She is a litigant in person with no previous experience of Tribunal litigation. She has worked for the Respondent continuously for around 30 years. She attended the Tribunal with a supporter, Mr G Ward. The Respondent is her employer. The Amended Grounds of Resistance document (which I will deal with in more detail below) talks about her “resignation” [§4] and her constructive unfair dismissal [§32]. This is confusing because Claimant continues to be employed by the Respondent and has never resigned nor claimed constructive unfair dismissal.(6) The Respondent was represented by counsel instructed by their legal department.(7) Throughout the hearing we have borne in mind the guidance in the Equal Treatment Benchbook regarding litigants in person as well as ensuring that everyone involved in the hearing was comfortable and all reasonable adjustments provided for.(8) It was central to the Claimant’s case that she relies upon the Respondent’s Guaranteed Interview Scheme policy for disabled people, care leavers and armed forces covenant (“the GIS policy”). Chronology(9) Here is a chronology of the relevant background events: (i) The Claimant was employed as an “Access Officer”, a grade 7 role. Over her long career it was her unchallenged claim that she had become very experienced in issues pertaining, inter alia, to disabled people and their interactions with the Respondent-Council, presumably as Council customers, but also disabled individuals employed by the Respondent-Council. On 28 March 2023, the Claimant was offered a full-time placement/secondment for 3-4 months to set up a Workplace Adjustment Hub project for the Respondent. In the context of resisting the application, she told us that she had already been working on the Workplace Adjustment Hub project for some time before March 2023. On 3 April 2023 the Claimant met with Simon Gardiner regarding supporting the Workplace Adjustment Hub project. She also told us that, if she accepted the secondment, then she understood that she would have to give up her existing role. (ii) On 17 April 2023 the Claimant met with Simon Gardiner and Kane Joyce to explain that she did not wish to accept the secondment role and why. The Claimant said that, immediately after declining the opportunity to apply for the secondment, Mr Gardiner made comments to her that she found objectionable and discriminatory. (It was not the role of the Tribunal at this point to investigate what was said and make findings). (iii) According to the written chronology document presented to us, on 12 May 2023 the Workplace Adjustment Hub manager new role/vacancy was sent out to “network chairs” and circulated amongst their members. In ordinary language, I think that this means that the new role was advertised internally. (iv) On 26 May 2023 the Claimant applied for the Workplace Adjustment Hub manager role, which was a grade 10 role. (v) On 30 June 2023 the Claimant received an email from Lewis Roberts (project officer) informing her that her application had been unsuccessful, ie that she had not been selected for interview. (vi) On 4 July 2023 the Claimant met with Simon Gardiner on MSTeams to discuss the application and the Respondent’s decision not to shortlist her for interview. (vii) On 21 July 2023 interviews were held for the Workplace Adjustment Hub manager vacancy and on 23 July 2023 Gemma Walsh was appointed to the role of Workplace Adjustment Hub manager. We noted that there is a dispute in the case regarding whether Ms Walsh was a grade 7 (the Claimant’s case) or grade 8 employee (Respondent’s case). (viii) On 13 September 2023 the Claimant submitted a grievance. On 28 September 2023 the Claimant received an ACAS notice of early conciliation. (ix) On 20 September 2023 the Claimant had a grievance meeting with Tom Powell. On 7 November 2023 the Claimant received her grievance outcome letter. On 9 November 2023 the ACAS early conciliation certificate was issued. On 24 November 2023 the Claimant appealed the outcome and grievance.(10) On 8 December 2023 the Employment Tribunal received the Claimant’s ET1 claim form. Thereafter, the Claimant had a grievance appeal meeting with Safika Munshi and a grievance appeal letter was dated 13 March 2024. Details of the strike out application(11) The application notice which was apparently filed with the Tribunal on 28 April 2025. The Claimant was aware of the application. The application is a strike out application pursuant to rule 38 of the Employment Tribunal Procedure Rules 2024. The Respondent also made an application for costs pursuant to Rule 74 of the Employment Tribunal Procedure Rules 2024.(12) Rule 38 of the Employment Tribunal Procedure Rules 2024 says: “Striking out 38. (1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds: (i) That it is scandalous or vexatious or has no reasonable prospect of success. (ii) That the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious. (iii) For non-compliance with any of these rules or with an order of the tribunal. (iv) That it has not been actively pursued. (v) That the tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out). (2) A claim, response or reply may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. (3) Where a response is truck out, the effect is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested). (4) Where a reply is struck out, the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim).”(13) As per [§1] of the Respondent’s application notice, the grounds are that the Respondent avers that the Claimant’s claims should be struck out on the following grounds: (i) They have no reasonable prospect of success1 (Rule 38(1)(a)). (ii) The manner in which proceedings have been conducted by the Claimant has been unreasonable. (iii) The Claimant has failed to comply with the orders of the tribunal.(14) We noted that only in an exceptional case will it be appropriate to strike out claims for having no reasonable prospect of success where the central facts are in dispute – for example, where a claimant seeks to establish facts that are totally and inexplicably inconsistent with the contemporaneous documents: Ezsias v North Glamorgan NHS Foundation Trust [2007] ICR 1126 (CA).(15) In Cox v Adecco HHJ Tayler said this (at paras 30 and 31): “Strike out is not a way of avoiding rolling up one’s sleeves and identifying, in reasonable detail, the claims and issues; doing so is a prerequisite of considering whether the claim has reasonable prospects of success … Respondents seeking strike out should not see it as a way of avoiding having to get to grips with the claim. They need to assist the tribunal to comply with the overriding objective and not to take procedural advantage of litigants in person, should assist the tribunal to identify the documents, and key passages of the documents, in which the claim appears to be set out, even if it may not be explicitly pleaded in a manner that would be expected of a lawyer, and take particular care if a litigant in person has applied the wrong legal label to a factual claim that, if properly pleaded, would be arguable. In applying for strike out, it is as well to take care in what you wish for, as you may get it, but then find that an appeal is being resisted with a losing hand.”(16) We note that often a strike out application decision will turn on whether inferences can be drawn once full factual findings have been made. Morgan v Royal Mencap Society [2016] IRLR 428 (EAT); Daly v Northumberland Tyne and Wear NHS Foundation Trust 0109/16 (EAT) and Wilsons Solicitors LLP v Roberts [2018] ICR 1092 (CA). We also note, as per Abertawe Bro Morgannwg University Health Board v Ferguson 2013 ICR 1108, EAT that the Employment Appeal Tribunal has remarked that, in suitable cases, applications for strikeout may save time, expense and anxiety. However, in cases that are likely to be heavily fact-sensitive (such as those involving discrimination or public interest[1]My emphasis disclosures (‘whistleblowing’)), the circumstances in which a claim will be struck out are likely to be rare. Procedural background and how the case has evolved (17) The Claimant submitted her claim on 8 December 2023. Box at 8.2 of the ET1 says at the top of the document "I was denied the equal opportunity to be shortlisted for an interview”. The box at 8.2 goes on to say: Discrimination on disability “The Respondent has a guaranteed interview scheme policy for disabled people, care leavers, and armed forces covenant. I have been disabled for over 40 years. I was treated unfavourably contrary to Section 15 of the Equality Act. I was told that I did not meet the minimum requirements for a guaranteed interview. However, the investigation reveals there was no clear criteria for this – it has now been referred to the head of human resources for guidance. I have 21 years working in this area of work, a degree and a specialist post-graduate degree. Other candidates did not have this level of specialisation but were shortlisted. Discrimination on race Simon Gardiner and Kane Joyce treated me unfavourably as I had turned down an offer of secondment to set up and run the same project on my substantive grade 7, for which they agreed I had the necessary expertise, I decided to wait until the manager role was advertised at grade 10. Simon Gardiner told me that I would be unsuitable for the manager role before the job was advertised. The reasons he gave were that I would need a degree and post-graduate qualifications, he was unaware that I have these already. He said that it would be a better fit for a grade 8 role with additional training, including taking the secondment. He told me “Do not cut off my nose to spite my face”. Similar examples were raised as part of the Council’s race review. In feedback he told me my scorings were [this part of the ET1 form is illegible] he moderated the scorings as two different scoring systems were used, I feel he used his influence as chair of the selection panel. Also, all reference to qualifications was deleted from information submitted to panel members. I could not be anonymised as I am the only person in this particular role and my work covers the whole organisation. No other candidate was offered the secondment to set up the project. Discrimination on age The Respondent (Simon Gardiner) told me that an employee could not move from grade 7 to grade 10 as they would not have enough experience. However, a younger candidate (aged approximately 32) was appointed to the role. I have over 21 years working in this area of work and therefore felt discriminated against due to my age and their desire to recruit younger staff.” At [§15] of the ET1 form the Claimant wrote: “During the feedback section the Respondent made the comment “Just because you have qualifications does not make you manager material”. I feel I was treated unfairly. I submitted a grievance on 13 September 2023, I am still awaiting the outcome of an appeal. My experience also including my role as access officer, chairing the disabled staff network, who campaigned for the creation of the Workplace Adjustment Hub (the project) the NW regional chair of the Access Association. With this experience I felt I met the criteria for being shortlisted. I can provide additional information later to verify the events that led to this claim”. (18) We emphasise that the ET1 form was clear that it was about the Claimant alleging that she had been denied equal opportunity to be shortlisted for an interview. She was clear that she was claiming discrimination on grounds of disability, race, and age. It is also emphasised that the Claimant mentions, under the discrimination on race side heading, that she had turned down an offer of secondment. The topic of the secondment is a polemic in the case and this application. (19) In response to the ET1, the Respondent provided an ET3 form appending Grounds of Resistance [§§24-27]. This document agrees that the Claimant commenced her employment with the Respondent on 15 August 1994, that she has continuous local government services from 22 August 1988 and that she was (then) currently working as an access officer within the planning, licensing, and building control department. The document states that on 13 September 2023 the Claimant submitted a written grievance complaining of discrimination on the grounds of age, race, and disability, in respect of recruitment and selection process for the Workforce Adjustment Hub manager role grade 10. (20) At [§8] of the Grounds of Resistance, the Respondent admits that the Claimant is a person with a disability as defined by Section 6 of the Equality Act 2010. However, at [§9] the Respondent denied that they had discriminated against the Claimant and the ET3 sets out why they say the Claimant was not discriminated against on the basis of disability, race, or age. We note that the document does not say that it is unclear what the Claimant’s case is. We note that there is some detail in the paragraphs dealing with the background [§§3-5] and then there is a summary of the Respondent’s investigation headed by Tom Powell at [§6] which considers the shortlisting criteria in particular. Without making any findings of fact, prima facie it appears that the Respondent was fully appraised of the facts and matters which make up the index claim because the Respondent carried out a detailed investigation in September 2023. (21) On 29 July 2024 the Tribunal claim was listed for a preliminary case management hearing before Judge Stewart. The case management hearing orders are at [28-30]. At [§2] this document records that Judge Stewart said that it would be necessary and “very helpful for the Claimant to restructure and distil her complaints and to clarify precisely what legal complaints she is bringing forward so that the Respondent is in a position fairly to respond/defend and so the tribunal will be in a position to try her complaints…”. At [§5] it is explained that the Claimant is encouraged to put forward the types of discrimination that she complains about so that the Respondent can then amend and particularise their response. (22) As a result, the Claimant provided a document which is set out as a table [36- 44 of the bundle]. This document was organised under headings of date, incident, grievance, and people involved. She then has a heading headed “ERA 2010”. The reference to the ERA is usually a reference to the Employment Rights Act 1996. I believe that this is a typographical error and that what she meant was reference to the Equality Act 2010 and she does indeed reference sections of the Equality Act 2010 within the document. There is then a final column which comments why she is complaining about dated incidents. She referred to this document at times in the hearing as her “further and better particulars” document. (23) In her “further and better particulars” document the Claimant mentions the following information (noting that below I have selected the most pertinent matters):(i) complains about an incident on 3 April 2023 at a “catch-up” meeting.(ii) Records a second incident on 29 May 2023 relating to the application form for the role of Workplace Adjustment Hub manager grade 10.(iii) Somewhat confusingly there is then a reference to 30 June 2023 although it does not seem to be numbered as a third incident. It is simply giving the information that her application was not successful, although the Claimant says that this was (due to) direct discrimination on disability, age, and race, pursuant to Section 13 of the Equality Act 2010.(iv) There is then an allegation, which was numbered 3, but I suspect is number 4, on 4 July 2023 when she claims that she was discriminated against at an oral feedback via online meeting.(v) Next there is an incident on 21 July 2023, the date of the interview for the role when the Claimant asserts that she should have been shortlisted under the guaranteed interview scheme (for disabled people, care leavers, and those covered by the armed forces covenant). In particular, the Claimant asserts “I assert that the decision to not shortlist me for an interview was unfavourable treatment for something arising in consequence of my disability”.(vi) Next there is an allegation relating to 23 July 2023 when the Claimant says that the candidate who was appointed, was her comparator Gemma Walsh who, the Claimant claims, had 8 months of experience at the bottom of grade 7 before being appointed to the grade 10 role. The Claimant says that Ms Walsh did not share the Claimant’s protected characteristics. In this section the Claimant claims Section 13 age and race discrimination and notes that Simon Gardiner had informed her that a grade 7 could not move up to a grade 10 role as they would not have enough experience.(vii) The next item is the submission of a grievance on 13 September 2023 but this is not clarified as a specific allegation.(viii) The grievance meeting is mentioned on 20 September 2023 and(ix) The outcome on 7 November 2023 is referred to. Under the heading of the grievance outcome letter the Claimant asserts that two scoring systems were used for the shortlisting criteria and were moderated by the chair of the panel (Simon Gardiner). In relation to this section, the Claimant claims Section 13 race and age discrimination pursuant to Section 19 on the basis that the panel did not adhere to the recruitment selection policy and the Claimant asserts, the panel (must have been) misled by Simon Gardiner despite the shortcomings of the recruitment process. (24) Returning to the progress of the case through the Tribunal administration system, the Claimant’s claim was then listed again for a further case management hearing on 4 November 2024 before the