Mrs P Day v The Bee Hive (NW) Ltd and Others: 2416368/2018 and Others
EMPLOYMENT TRIBUNALS
Case No 2416368/2018, 2415427/2018, 2416830/2018
Between
Mrs P DayClaimant(1) The Bee Hive (NW) Ltd (2) Stephen John Robinson (3) Luke Robinson (4) Vanessa Maria RobinsonRespondentDate 5 July 2022
JUDGMENT
[1]The claimant’s claim for indirect disability discrimination is dismissed on withdrawal by the claimant.[2]Her other claims are unaffected and will proceed to hearing.
REASONS
Conclusions
[1]The claimant was ordered to pay deposits of £500 in relation to each of the 12 complaints noted above.[2]The deposit orders were made following a preliminary hearing held on 11/07/19 . The orders were sent to the claimant on 16/07/19.[3]The claimant applied for reconsideration of the orders made. The orders following reconsideration were made on 20/12/19 and sent to the parties on 14/01/20.[4]The claimant has failed to pay these deposits. The complaints noted above are therefore struck out under rule 39(4) of the Employment Tribunals Rules of Procedure 2013. 7.6C Deposit not paid – Judgment -Rule 39
Facts
[5]All other complaints made under case number 2416368/18 continue.[1]The complaints of direct sex discrimination are not well founded.[2]The complaints of harassment related to belief and/or sex are not well founded.[3]The complaint of victimisation pursuant to section 27 Equality Act 2010 Is not well founded.[4]The complaint of indirect philosophical belief discrimination is not well founded.[5]The complaints of public interest disclosure detriment are not well founded.[6]The complaints of instructing, causing or inducing and/or aiding contraventions contrary to sections 111 and 112 Equality Act 2010 are not well founded.[7]The remedy hearing provisionally listed for 11 February 2022 will not take place but there will be a costs hearing on that date, if a costs application is made within 28 days after this judgment is sent to the parties.[1]The claimant presented four claim forms. In addition to the complaints which were the subject of this final hearing, the complaints presented by the claimant included age discrimination, race discrimination, disability discrimination, sexual orientation discrimination and marriage discrimination.[2]There were a series of preliminary hearings before a number of judges prior to this final hearing, the last of which was a preliminary hearing on 29 March 2021 before Employment Judge Leach.[3]The claimant withdrew a complaint of disability discrimination in relation to thyroid dysfunction in case number 2416368/18 by email dated 28 March 2019. A judgment dismissing this complaint was sent to the parties on 16 April 2019.[4]As a result of deposit orders being made in relation to certain complaints in respect of which the deposits were not paid, a considerable number of the original complaints were struck out. Employment Judge Hoey made deposit orders sent to the parties on 14 January 2020. Employment Judge Leach made deposit orders sent to the parties on 13 November 2020 and 18 January 2021. Judgments were issued for the complaints which were struck out because the deposits were not paid. A deposit in respect of one complaint was paid, and that public interest disclosure complaint is included in the complaints decided at this final hearing. The claimant appealed to the Employment Appeal Tribunal against the making of the deposit orders made by Employment Judge Hoey, but her appeal was unsuccessful.[5]We note from the record of the final preliminary hearing on 29 March 2021, that Employment Judge Leach recorded that all the complaints in case numbers 2415427/18 and 2402191/19 had previously been struck out (which we understand to be because of deposit orders being made and the deposits not being paid) but Employment Judge Leach retained the claims, pending costs applications. We understand judgments have already been issued dismissing all the complaints in those two claims, so do not consider there is any further judgment for us to make in relations to complaints included in those two claims. If the respondents wish to pursue costs applications in relation to those two claims, and any other matters, as noted in our judgment, that application must be made within 28 days after this judgment is sent to the parties.[6]The claimant failed to comply with the case management order to send her witness statements to the respondents by 30 July 2021. An unless order was sent to the claimant on 1 September 2021, informing the claimant that, unless she provided her witness statements to the respondents by 6 September 2021, her claims would stand dismissed without further order. The claimant provided her witness statements within the time period required by the unless order, so her claims were not dismissed. This hearing[7]The final hearing was listed in May 2020 to take place in September 2020 in Manchester. At the time, it was contemplated that the hearing would take place in person. The hearing length was reduced to four days at a preliminary hearing in March 2021. In the context of the continuing pandemic, the Tribunal informed the parties on 3 September 2021 that the final hearing would take place by video conference. The claimant asked for the hearing to take place in person. The respondent asked for it to take place by video conference. The parties were informed that the Tribunal, on the first day of the hearing, would decide how the remainder of the hearing should proceed. The Tribunal members and the claimant attended the first day in person and the respondent attended by video conference.[8]After hearing submissions from the parties, the Tribunal decided that the respondent’s sole witness, Mrs Robinson, should be allowed to attend remotely. The claimant did not object to Mr Davies, the respondent’s representative, attending remotely.[9]The reasons for the Tribunal’s decision were given orally, as follows. 9.1. The claimant has accepted Mrs Robinson has the condition of sarcoidosis, an auto-immune disorder, and that this affects her respiratory system. Coronavirus is a virus which can particularly affect someone’s ability to breathe. In general, we understand people with conditions affecting their respiratory systems may be more liable to serious illness if infected. Mrs Day says she has seen evidence that sarcoidosis does not increase risk of serious illness from coronavirus, but she does not have that with her. However, even assuming there is scientific evidence to this effect, we would not feel confident in relying on this to decide that there would be no increased risk to Mrs Robinson of catching coronavirus and getting seriously ill if she were to attend the Tribunal in person. We consider that, in these times, we must err on the side of caution. 9.2. Given that Mrs Day has accepted that Mrs Robinson has the condition, we do not consider it would be proportionate or a good use of NHS resources to require Mrs Robinson to obtain a report from her GP, even if this can be done in time for the hearing to proceed as listed. 9.3. Mrs Day believes that justice cannot be done if a witness does not attend in person to be cross examined by someone in the same room. We disagree. The Tribunal has experience now of well over a year in frequently hearing evidence remotely, and we can manage the type of concerns which Mrs Day has raised. We consider that to allow Mrs Robinson to give her evidence remotely would be in the interests of justice. 9.4. Mrs Day has not asked for a postponement of the final hearing, but, on the basis of arguments that have been put to us in relation to the request that was made, we would not have granted a postponement on those grounds. 9.5. The hearing will, therefore, proceed with Mr Davies and Mrs Robinson attending remotely. Mr and Mrs Day can choose to attend the hearing in person if they wish to do so, or they can choose to attend the remainder of the hearing remotely if they wish to do so.[10]After this decision was given, the claimant and Mr Day, who was also giving evidence, chose to attend the remaining days of the hearing remotely.[11]We concluded hearing evidence just before 4 p.m. on the fourth and last day of the listed hearing. There was insufficient time to hear the parties’ submissions on the day. The respondent had already prepared written submissions. The respondent asked that the tribunal accept written submissions rather than the parties attending on another day to give oral submissions. The claimant preferred to give oral submissions on another day. The Tribunal decided that it would be disproportionate to put the respondent to the expense of attending another day’s hearing on a future date. The claimant had demonstrated that she could express herself as well in writing as orally and we did not consider that she would be substantially disadvantaged by being required to prepare written submissions. The Tribunal, therefore, ordered that submissions should be made in writing.[12]We agreed a timetable for written submissions with the parties. The respondent was relying on the written submissions already provided. The Tribunal agreed that the claimant could have until 14 October 2021 to provide her written submissions to the Tribunal and the respondent. The Tribunal had proposed two weeks from the last day of the hearing but the claimant asked for four weeks because she said that her tinnitus slowed her down with writing and she did not know from day to day how bad this would be. The respondent was given seven days from receipt of the claimant’s submissions to respond to these submissions.[13]The parties were advised that the Tribunal would be meeting in chambers on 2 December 2021 to decide on liability. This in chambers day was subsequently moved to 3 December 2021. A provisional date for a remedy hearing, if required, was arranged for 11 February 2022, to be held by video conference. Case management orders would be made on paper if required for preparation for a remedy hearing. Applications made by the claimant after close of
Evidence
[14]By an email dated 21 October 2021, the claimant made an application to put additional material in evidence on the grounds that it was evidence of Vanessa Robinson giving perjured witness evidence under oath. The claimant did not identify in that application what statements in Vanessa Robinson’s evidence she alleged were wilfully false statements in relation to which the evidence the claimant sought to admit was relevant. Part of the claimant’s application relates to material which Employment Judge Leach ruled was not admissible and not relevant. There does not appear to be any material change of circumstances which would permit the Tribunal to make a new ruling on an application which has previously been refused. Part of the application relates to an audio recording which it appears the claimant had not disclosed to the respondent and the relevance of which to the issues the Tribunal has to determine is unclear.[15]The Tribunal considers that new evidence should only be admitted after evidence has closed in exceptional circumstances. It would not, except in the most unusual circumstances, be in accordance with the overriding objective of dealing with the case fairly and justly to allow a party to re-open the evidence stage of proceedings, particularly taking into account the requirement to deal with the case in ways proportionate to the complexity and importance of the issues, avoiding delay, so far as compatible with proper consideration of the issues; and saving expense. The claimant has not made out a compelling case as to why such an unusual course of action should be allowed in this case.[16]For these reasons, the claimant’s application dated 21 October 2021 to admit further evidence is refused.[17]On 24 November 2021, the claimant made a further application to admit new evidence, being evidence of a default judgment obtained by Woodcock Ltd against the first respondent for the balance of its invoice plus court fees. The respondents responded in writing on 29 November 2021. We do not consider the evidence to be of relevance to the issues we need to determine and refuse the application to admit it in evidence.[18]The claimant’s submissions also include a number of applications to strike out allegations, particular evidence from the respondent and the ET3 responses to all the claims against all the respondents.[19]The Tribunal refuses the application to strike out allegations made in paragraph 140. The allegations referred to are evidence relevant to the reasons for the respondent’s actions, or causation. It is not a change to the respondent’s defence that the respondent did not act as it did because of the claimant’s sex, or related to her sex or philosophical belief or because of making protected disclosures or doing protected acts.[20]The Tribunal refuses the application at page 83 of the submissions to strike out Vanessa Robinson’s witness and oral evidence relating to the claimant’s NLP session with Luke Robinson and Vanessa Robinson on 20 December 2017 on the grounds that it was not pleaded in any of the responses. The responses must contain the basis for the defence; they do not need to (and should not) contain all the evidence relevant to the issues before the Tribunal.[21]The Tribunal refuses the application to strike out the responses made at page 82 of the submissions. The Tribunal has heard the evidence and the submissions relating to all the claims and issues in the case. It is time to decide on the merits of the case. It would not, in the circumstances of this case, be in accordance with the overriding objective if, after all the evidence had been heard and closing submissions made, the Tribunal, instead of deciding on the merits of the case, decided to consider strike out applications. If we have omitted to refer specifically to any other applications contained in the claimant’s lengthy submissions, we refuse the applications for the same reasons as in relation to this strike out application. Claims and issues[22]The claims to be determined at the final hearing were of sex and religion/belief discrimination, victimisation under the Equality Act 2010 and public interest disclosure detriments. The claimant also brought complaints about instructing, causing or inducing and/or aiding contraventions contrary to sections 111 and 112 Equality Act 2010.[23]The claimant relied on an empathy belief and rule of law belief as her philosophical beliefs for her complaints of religion or belief discrimination.[24]There was an agreed list of issues which made reference to a Schedule of Allegations documents which was annexed to the record of the preliminary hearing on 30 October 2019 (being a version of this document updated at that hearing). We had a discussion on the first day of the hearing about the Schedule of Allegations, as a result of which some amendments were made to this by agreement.[25]There remained an issue about whether allegation 15(a) remained as part of the claim. The Tribunal, after hearing the parties’ submissions and doing its initial reading into the case, decided that this complaint of victimisation “that the respondents did not withdraw the letter of termination [of 13 June 2018] and did not therefore restore the contractual relationships under which the claimant worked for R1” did not remain part of the claimant’s claims. We gave the following reasons for this decision. 25.1. The notes from Employment Judge Leach’s preliminary hearings on 19 - 20 October 2020 and 29 March 2021 are clear that the only complaint of victimisation remaining to be determined at the final hearing is the complaint in claim three (case number 2416830/18). The complaints of victimisation in claim one (2416368/18) were, Employment Judge Leach concluded, withdrawn by the claimant at the preliminary hearing before Employment Judge Ross on 28 February 2019 and Employment Judge Leach issued a judgment dismissing these. The complaint of victimisation in case numbers two and four (2415427/18 and 2402191/19) were the subject of deposit orders sent to the parties on 13 November 2020. The deposits were not paid so those claims were struck out. 25.2. It is clear to us that Employment Judge Leach considered the only complaint of victimisation in claim 3 to be the complaint about the letter of 1 November 2018 referred to in allegation 15(b) in the schedule of allegations. Having now read the particulars of claim in claim three, we agree with his identification of this as the only complaint of victimisation in claim three. We refer, in particular, to section 6 (p.64) where the claimant outlines the complaint of victimisation. 25.3. We are unclear of the origin of allegation 15(a) in the schedule which Employment Judge Leach prepared as an attempt to identify the claimant’s complaints from all the claims. However, we are clear that it was not in claim three which contains the only complaint of victimisation to be to determined by this tribunal.[26]We have set out, in the Annex to these reasons, a list of claims and issues which, as a result of the discussion on the first day of the hearing and the Tribunal’s decision in relation to allegation 15(1) in the Schedule, were to be determined by the Tribunal at this final hearing. This list incorporates the agreed list of issues and the relevant parts of the Schedule of Allegations. Application by the claimant for an Unless Order[27]On the first day of the hearing, the claimant made an application for an unless order for the respondent to bring to the Tribunal the physical signing in book in which the claimant asserted that all full-time staff signed in and out. The claimant said that Employment Judge Leach had ordered the respondent to bring the physical copy of this book to the hearing, rather than printing it out to include in the hearing bundle. The claimant submitted that this document was relevant and necessary for her to prove her Equality Act claims and protected disclosure claims. She submitted that it would prove the timings of aspects of events during her employment; which people were present on certain days.[28]The respondent submitted that the respondent did not have a physical register and could not disclose what they did not have.[29]We refused to make an Unless Order for the following reasons which we gave orally. 29.1. The respondent’s representative tells us that the physical document, which is the subject of the request, does not exist. We cannot make an Unless Order to strike out the response for not producing a document which we are told does not exist. 29.2. If the claimant does not believe the respondent’s assertion that there was no such document, the claimant can cross examine the respondent’s witness on this area, and the Tribunal may draw inferences adverse to the respondent if the evidence suggests that the respondent has not produced a relevant document which does, in fact, exist. Evidence[30]We had written witness statements from the claimant and her husband and coowner and director of Woodcock Ltd, Mr Robert Day, for the claimant and from Mrs Vanessa Robinson, a named respondent and co-owner of the first respondent company, on behalf of all the respondents. We heard oral evidence from all these witnesses.[31]Mr Day’s witness statement bore a remarkable similarity to certain parts of the claimant’s witness statement, down to the words and style used. Mr Day gave evidence that he had prepared the statement himself and that the words used were his own words. We find that the similarity in the two statements is too great to be a coincidence and find that both statements must have been drafted in large part by the same author. We find it more likely than not that Mrs Day drafted a substantial part, if not all, of Mr Day’s witness statement. This is supported by the original text of the witness statement, before it was corrected by Mr Day before he confirmed the truth of the amended statement, referring in places to “my husband” and “me as the claimant”. We find it difficult to put much, if any, weight, on Mr Day’s evidence in these circumstances.[32]The third respondent, Stephen (Steve) Robinson, is the husband of Vanessa Robinson. The fourth respondent, Luke Robinson, is the son of Vanessa and Steve Robinson. Luke and Steve Robinson did not provide witness statements and give oral evidence. Vanessa Robinson said she did not want Luke subjected to any more stress and she felt the buck stopped with her. Steve Robinson had no contact with the claimant in 2018. As we find later, he was involved in the decision, made jointly with Vanessa Robinson, to terminate the claimant’s contract.[33]We had a bundle of documents prepared by the respondent which ran to 1207 pages and a further bundle prepared by the claimant which ran to 695 pages. We refer to pages in the bundle prepared by the respondent as “RB[number]” and pages in the bundle prepared by the claimant as “CB[number]”. Page references are to the numbers written on the pages, rather than to the electronic numbering in the electronic version. We were not referred to, and have not read, all the documents in the bundles.[34]The claimant’s bundle was delivered at a very late stage to the respondent and, initially, delivered to a nearby address, leading to a delay in Mr Davies being able to access the bundle. However, the respondents did not apply to postpone the hearing.[35]The claimant made an application after close of evidence, to admit further evidence, which we deal with separately below.
Summary
[36]All the complaints brought by the claimant are brought on the basis (now agreed) that she was an employee of the first respondent company, within the Equality Act sense, and a worker, within the meaning in the Employment Rights Act 1996. The claimant had a contract to work for the first respondent from January 2018 until this was terminated in June 2018. The claimant’s involvement with the respondents went back earlier than her “employment” relationship. Woodcock Ltd, a company owned by the claimant and her husband, entered into arrangements with the first respondent in September 2016 in accordance with which the claimant and her husband provided various services to the respondents, without any payment calculated on a time spent basis, in anticipation of being rewarded eventually by a share of commissions earned by the first respondent. All relationships between the claimant, Woodstock Ltd and the respondents were terminated summarily by a letter from Vanessa and Steve Robinson in June 2018. The claims brought by the claimant arise in that context. There is a commercial dispute between Woodcock Ltd and the first respondent as to what, if anything, Woodstock Ltd was entitled to be paid for the services that company provided through the claimant and Rob Day. These services are distinct from the services the claimant provided to the first respondent in accordance with the “employment” contract. Issues relating to this commercial dispute are not a matter for this Tribunal. Facts[37]The first respondent company operates an estate and letting agency. The shares in the first respondent company are owned by Pennine Property Management Limited. Vanessa and Steve Robinson are the owners and directors of Pennine Property Management Limited. Vanessa, Steve and Luke Robinson were directors of the first respondent company at relevant times. Vanessa remains a director. Steve and Luke have ceased to be directors. Vanessa Robinson was responsible at relevant times for the day-to-day management of the first respondent’s business and for the property lettings. Luke Robinson, son of Vanessa and Steve Robinson, was responsible for property sales. Steve Robinson was rarely involved in the day-to-day management of the respondent business.[38]The claimant had little contact with Steve Robinson. They did not speak at all in the period January to June 2018.[39]In around January 2017, the claimant alleges that Steve Robinson told her that she was more like a man when dealing with Luke, because she had not had children, unlike his wife who was more protective of her children. Later in 2017, the claimant alleges that he got angry, referring to the claimant and Vanessa Robinson as “you two women”. Vanessa Robinson did not recall these comments but did not deny them. We find, on a balance of probabilities, that Steve Robinson made these alleged comments. It is agreed that another employee, Peter, referred to Vanessa Robinson as “the boss lady”. We accept Vanessa Robinson’s evidence that this description was a joke, arising from a taxi driver in the Caribbean, when she was on holiday, referring to her as “boss lady”. Peter sent emails to the claimant and Vanessa, beginning “Hi Ladies”.[40]The claimant describes herself as a trained and qualified teacher, trainer, coach and mentor with additional NLP (Neuro-linguistic programming) practitioner qualifications and skills. The claimant and her husband, Rob Day, are the owners and directors of a company, Woodcock Ltd, which operates under the trading names of Insource and Insource Consultancy.[41]The claimant was introduced to Luke and Vanessa Robinson in 2016. The claimant is a member of BNI, a business networking and referral organisation. She was introduced to Luke Robinson by a fellow member of BNI, from Community and Business Partners (CBP). The claimant was recommended for providing business mentoring support.[42]The respondents were interested in business mentoring for Luke Robinson, primarily because of struggles he had with reasoning, spelling, punctuation, attention and focus and lack of confidence.[43]Under a mentoring scheme, the claimant initially provided 12 hours of her time to the respondents free of charge.[44]In September 2016, Woodcock Ltd began providing services to the first respondent. A document entitled “Non-disclosures and confidentiality agreement” was signed by Vanessa Robinson and Luke Robinson on 15 September 2016 (RB 329- 330, and 280). This document describes “the Insource journey” and Insource’s consulting service. Under the heading “agreed objectives” are included the following: “New Insource™ Psychometric Marketing, Sales Training and Coaching To Generate Additional Sales of £150k. Cost Of The Annual Licence To Rob and Pam For The New Insource™ Psychometric Marketing, Sales Training and Coaching = One Third Of Additional Sales = £50k”[45]It referred to generating maximum additional sales for the next 30 years.[46]The claimant has referred to this document as a legally binding agreement. The respondents dispute that it was. There is also a dispute as to the meaning of its terms, if it was a legally binding agreement. It is not necessary for us, in deciding on the issues before the Tribunal, to make a finding as to whether it was a legally binding agreement and, if it was, to interpret its terms. This may be a matter which is considered in another court. We do not make any findings of fact or reach any conclusions as to the legal status of the document or the interpretation of its terms. If we refer to this as an “agreement” it is as shorthand for the document and not intended to indicate any finding or conclusion reached by us as to its legal status.[47]The parties’ intention was to set up a business model for sales with Quality Procedures (QPs) designed by the claimant to be followed by all those working in the business which would lead to excellent performance by all staff and, in particular, allow Luke Robinson to become a high performing sales director. There was also an intention to explore the possibility of rolling out this business model to other locations on a franchise basis.[48]The claimant, Rob Day and Woodcock Ltd were not paid on a time spent basis for work done with the respondents (other than payment to the claimant under a separate agreement for her to work, from January 2018 as an HR/legal assistant). The claimant and Rob Day anticipated being rewarded for their work, through payments to Woodcock Ltd related to commissions from sales over a 30 year period.[49]The claimant recruited a number of people to the first respondent’s business. She drafted contracts for those she recruited. A number of the people the claimant recruited were employed as apprentices at the suggestion of the claimant who was also involved in their training. It appears that there was a high turnover of those employed as apprentices in the less than two year period during which the claimant was involved with the first respondent’s business, although we heard of one who stayed on to become a permanent employee after a one year apprenticeship. The HMRC report, referred to later, wrote of being informed that there had been 6 or 7 apprentices.[50]The claimant and Rob Day provided coaching and training to Luke Robinson and assisted with setting QPs. The claimant asserts in submissions that it was only Rob Day who provided coaching and that the claimant supported Luke Robinson in her role as QP manager and under a recruitment contract. We agree with the respondent’s submission that the claimant is splitting hairs in the terminology used to describe her involvement with Luke Robinson. Based on emails from the claimant to Luke Robinson, we find she was providing a form of mentoring or coaching to Luke Robinson. The claimant in cross examination said that she was there to help Luke and get him to be where he wanted to be, which we also consider indicates a “coaching” relationship.[51]The claimant gave evidence in cross examination that she had previous experience in lettings but declined an invitation to elaborate. We had no other evidence to suggest that the claimant had any particular experience with sales or lettings. We understood that Woodcock Ltd t/a Insource, through the services of the claimant and Rob Day, was, rather than providing any expertise in the lettings and sales business, providing a business model, which could be used in any small or medium sized business, aimed at achieving success. This finding is supported by what is written in the “Non-disclosure and confidentiality agreement” about Insource’s “formula” or “blueprint” being able to help any SME business to double their profits by getting their marketing to work and getting their staff to work (RB282).[52]The rental side of the first respondent’s business was much more successful at this time than the sales side and its profits supported the sales side.[53]It is clear from the emails we have seen that Luke Robinson was an enthusiastic and willing student of the claimant and Rob Day and was keen to please them. The coaching provided included daily hour-long review telephone calls between Rob Day and Luke.[54]It appears that the respondents were happy with the arrangements between them and the claimant’s company through most of 2017. In July 2017, Luke Robinson was reporting to Rob Day that the respondents were in the best financial position they had ever been in with the Beehive, showing that all their hard work was paying off (RB381).[55]By December 2017, it is apparent that Vanessa Robinson was beginning to have concerns about the impact on Luke Robinson of the claimant’s work with him. In a WhatsApp message on 16 December 2017 (RB437), she wrote: “Luke has emailed you - he’s feeling really low at the moment so mind how you push him.”[56]Vanessa Robinson was also suffering ill health around this time, which she considered had been exacerbated by stress.[57]In January 2018, the first respondent added the claimant to the payroll. The claimant began receiving a payment of £600 per month. Also, in January 2018, the claimant was set up with a Beehive email account. The claimant, Vanessa Robinson and Luke Robinson set up a WhatsApp group to communicate with each other. A written contract was produced by the claimant in the same form as contracts she had drafted for employees recruited by her to the business. It was signed by the claimant and backdated to 1 January 2018 (RB462). The claimant gave evidence she signed it on 3 January 2018. Vanessa Robinson gave evidence that it was not produced until around 9 April 2018. We do not consider it necessary to make a finding of fact as to when the claimant did sign the contract. The contract was never signed by anyone on behalf of the first respondent. The claimant accepted in evidence that Vanessa Robinson probably did not see the contract until April 2018. We find that Vanessa Robinson had not seen the contract before April 2018 and that the respondents, when they wrote the termination letter of 13 June 2018, believed, as alleged in that letter, that the claimant had backdated the written contract from April to January 2018.[58]We find that Vanessa Robinson and the claimant agreed that the claimant should be engaged as an HR/legal assistant to Vanessa and Luke Robinson with a payment of £600 per month from January 2018. An email from Vanessa Robinson to the claimant dated 18 January 2018 began “Hi Legal Pam”. (CB594)[59]The claimant was paid through payroll from January 2018 until the termination letter on 13 June 2018.[60]The respondents pleaded, in response to the claimant’s claims, that she was not an employee or worker of the first respondent. Prior to a case management preliminary hearing on 30 October 2019, the respondents made a concession as to the claimant’s status. This was recorded and clarified at the preliminary hearing as being that the respondent accepted that the claimant was an employee within the requirement of section 83(2) of the Equality Act 2010 and a worker under section 230(3) Employment Rights Act 1996 (ERA). No concession was made that the claimant was an employee under section 230(1) ERA.[61]Before Christmas 2017, the claimant had a telephone Neuro-linguistic programming (NLP) session with Luke Robinson. On 4 January 2018, the claimant messaged Vanessa Robinson, asking if she had seen any change since the session. Vanessa Robinson replied that she had, but wrote that she was concerned that Luke was so anxious and that he needed to be less stressed (RB464).[62]By March 2018, it appears that the business was not developing in the way which the claimant and the respondents had hoped. On 4 March 2018, the claimant sent an email to Vanessa Robinson asking to arrange a meeting to discuss what was stopping Luke Robinson from achieving the planned results (CB377).[63]Vanessa Robinson and the claimant met at the Tickled Trout on 9 March 2018. They discussed the sales numbers which were not good. There is a factual dispute as to what exactly was said at this meeting. Neither the claimant nor Vanessa Robinson made notes about the meeting at the time and we do not consider that either’s recollection as to exactly what was said is likely to be reliable. Some light is shed on what was discussed in the meeting by the emails before and after that meeting. We find, relying on these, that there was a discussion about things not working as they had all hoped and, in particular, about Luke not achieving the goals which had been set. There was some discussion about the possibility of giving up. Because of the email she sent subsequently, we find that the claimant understood she had been asked why she and Rob didn’t give up. Vanessa Robinson’s recollection was that she had said they needed to give up but she felt the claimant wasn’t listening. We consider both parties may have come out of the meeting with the understandings they expressed in evidence. Vanessa Robinson thought there was no alternative but to carry on, given the claimant’s expressed views. We reject the claimant’s evidence that they spoke about Luke possibly not complying with legal obligations under the Insource contract. This is not consistent with the reference to “promise” in the claimant’s subsequent email of 10 March 2018.[64]The claimant wrote on 10 March 2018 (CB376): “You asked me yesterday why Rob and I didn’t give up. Rob and I, like you and Steve, are old fashioned and believe that if someone makes a promise then they have an obligation to deliver on it. And Luke made Rob and I a promise that if we worked intensively with him and trained him to use our licensed worldclass QPs, then he would apply them until he was a master of them and then he would work with us for 30 years with us all reaping the rewards. And so Rob and I want Luke to be honourable and deliver on this promise.”[65]Vanessa Robinson replied that Luke had had a revelation that day as he had applied something that Rob showed him and he understood how it worked. The claimant wrote that they might be turning the corner and Vanessa Robinson replied that she hoped so.[66]On 12 March 2018, the claimant messaged Vanessa and Luke Robinson to ask when she was going to terminate the employment of Kealy and get Luke to take over her 360 degree BTLive (Buy to Live) role (RB424). Luke asked to discuss this and the claimant replied that there was nothing to discuss because he had made the decision to dismiss Kealy as there was no work for her to do and all he had to do was to ring the Federation of Small Business (FSB) and ask them how. In a further message to Vanessa Robinson, the claimant wrote that she was not prepared to accept Kealy staying when Luke hadn’t made it work “and she is getting paid when we aren’t. Luke has to make the 360 degree BTLive work himself now” (RB468). Vanessa replied that they had decided to dismiss Kealy, but just needed the plan how. The claimant told her to ring the Federation of Small Businesses (FSB).[67]Vanessa Robinson was notified on 13 March 2018 by ACAS that AH, a former employee who had been employed under a contract describing her as an apprentice and paid apprentice National Minimum Wage rates, was considering bringing a claim to an employment tribunal against the first respondent. The basis of the claim was that she had not been paid at the correct rate because she was not an apprentice as a result of the failure to provide training. Vanessa Robinson forwarded this letter to claimant. AH had approached Vanessa Robinson in October 2017 seeking a pay rise since she said she was doing much more work than she expected as an apprentice. Vanessa Robinson raised this with the claimant in an email. She wrote that she had told AH she did not know about the legalities of apprenticeships’ pay and would discuss it with the claimant (RB384A). Vanessa Robinson understood the claimant’s view to be that AH had signed her apprentice contract and was bound by it. AH resigned after not receiving a positive response to her request. Vanessa Robinson sought advice from the FSB which was that AH had not been treated as an apprentice and would be entitled to a higher rate of pay than she had been paid. Vanessa Robinson relayed this view to the claimant (RB400).[68]A few days later, Vanessa Robinson was informed that HMRC was doing a national minimum wage investigation triggered by AH’s case.[69]We find that the claimant encouraged Vanessa Robinson to defend robustly AH’s claim, despite the advice Vanessa Robinson had received from the FSB. The robust approach was demonstrated even before AH had formally notified ACAS of a claim. Following AH’s resignation, on 2 December 2017, the claimant wrote that she had been reading a recent judgment on dishonesty that could potentially apply to AH (RB405). We find that this was most likely to be in anticipation of AH bringing a claim and demonstrates an attempt to discredit AH; we have seen nothing to suggest AH was dishonest.[70]On 14 March 2018, Vanessa Robinson emailed the claimant, writing that HMRC wanted to arrange an appointment, to look through their records with regard to the minimum wage.[71]On 14 March 2018, the claimant emailed Luke Robinson about training to use Blooms Taxonomy to master the link between his time and his results. She wrote that his actual versus his planned results for this year had not matched and they had to the following year. She set out things that he had to learn and questions to answer before they moved onto specific training (CB383).[72]On 15 March 2018, Vanessa Robinson emailed the claimant a copy of a letter from ACAS, notifying the first respondent of a potential claim by AH and asking to discuss the matter.[73]On 16 March 2018, the claimant messaged Vanessa Robinson, telling her, in relation to AH’s case, to tell ACAS to speak to the claimant, describing her as her HR assistant who was handling this for Vanessa Robinson, and, if ACAS asked, to confirm the claimant was an employee. (RB468)[74]On 21 March 2018, the claimant messaged Vanessa and Luke Robinson, writing that she had realised that Luke had 9 of the 12 most common bad unconscious time habits and that this was a major part of what was stopping him achieving the sales targets (RB426)[75]On 21 March 2018, Vanessa Robinson gave permission for the claimant to speak to the FSB on the first respondent’s behalf, to get advice on employment law.[76]Also, on 21 March 2018, the claimant emailed Vanessa Robinson with advice on wording to include in a letter to Kealy, considering dismissal for redundancy. The first respondent was proposing to dismiss Kealy because Kealy did not have enough instructions to process to sale. Luke Robinson was not converting enough Market Appraisals (MAs) into instructions to sell to keep Kealy occupied with processing sales.[77]On 22 March 2018, there was a meeting between Vanessa Robinson, Rob Day and Luke Robinson. Vanessa Robinson gave evidence that she and Rob Day discussed potential termination of their arrangements at this meeting. Rob Day denied that this had been discussed. Vanessa Robinson had written of this meeting as being the last meeting she attended with both Rob Day and Luke. She accepted, in evidence, that she had been mistaken about when the last meeting was, and that there had been one on 12 April 2018. Given the mistake about the date of the last meeting, we consider it likely that Vanessa Robinson has become confused in her recollection of what was said on 22 March 2018. We do not find that potential termination of the arrangements was discussed on 22 March 2018. We will return to the meeting on 12 April later in these reasons.[78]On 27 March 2018, Vanessa Robinson gave Kealy a letter terminating her employment, on which the claimant had advised.
The Law
[79]On 28 March 2018, the first respondent won the gold award for the British Property Awards in the region.[80]On 28 March 2018, Luke Robinson wrote to Rob Day, writing that he was extremely thankful of Rob and the claimant’s time and experience helping him through difficult challenges.[81]On 29 March 2018, the claimant and Vanessa Robinson met with Kealy to discuss the proposal to make her redundant. Kealy’s redundancy was subsequently confirmed by a letter dated 3 April 2018 giving her one month’s notice.[82]Despite the industry recognition of the gold award, sales figures by 31 March 2018 were disappointing.[83]In early April 2018, Woodcock Ltd invoiced the first respondent for nearly £25,000 commission. Although the invoice is dated 30 March 2018, both parties agree it was not sent until early April. There is a dispute between the parties as to whether Woodcock Ltd was entitled to 1/3 of all sales or 1/3 of additional sales achieved because of the work of the claimant and Rob Day. It is not necessary for the Tribunal to resolve this dispute, which would require decisions on the contractual status of the document signed in September 2016 and the interpretation of this. It is possible that interpretation of this document may need to be considered in other court proceedings. If the respondents did not accept that this amount was due, they did not challenge it at this time and went on to make some payments towards settlement of the invoice; they first challenged the amount invoiced on 13 June 2018 in the termination letter. Vanessa Robinson gave evidence that she felt under pressure to make payments because of the ongoing HMRC investigation and the AH Tribunal. We consider this provides a plausible explanation as to why the invoice was not challenged at the time. However, we do not consider it necessary to make a finding as to whether the first respondent considered the invoice to be incorrect at the time of receipt, or only came to this view on reflection, and perhaps after taking legal advice, prior to the termination letter of 13 June 2018. As we state later in these reasons, we accept that, at least by the time of the termination letter, Vanessa and Steve Robinson had come to the view that Woodcock Ltd was not entitled to invoice for the amount it did.[84]On 5 April 2018, AH presented a claim to the employment tribunal, claiming that she had been entitled to be paid the national minimum wage rather than apprenticeship rates.[85]On 9 April 2018, an inspector from HMRC attended the respondent’s premises for an inspection. The claimant met with Vanessa and Luke Robinson after the meeting to debrief. The claimant alleges that she made protected disclosures at this meeting. We find that they talked about the need to improve sales figures and Luke not following QPs. The claimant has not satisfied us, on a balance of probabilities, that she talked about duties of company directors at that meeting.[86]At the time of the inspection, the inspector noted that there was one apprentice. The claimant informed the inspector that there had been 6/7 apprentices engaged in similar apprenticeships and/or training regime. This supports Vanessa Robinson’s evidence that she was concerned that they were training people who did not stay with the business. The inspector informed them that he had contacted the business because of a complaint from AH with regards to the national minimum wage. She had alleged that, although she had been taken on as an apprentice, there was no college attendance or agreement signed with a training provider.[87]On 12 April 2018, the claimant emailed Luke Robinson about a meeting that day with Rob Day and Vanessa Robinson, asking him to take with him his plan to transfer from Kealy to him the responsibility and strategy for achieving the 360 degree BTLive (buy to live) sales targets. She wrote that, from 1 May, he would be solely responsible for doing all steps in the sales process from getting MAs through talking to buyers/drops etc to doing the viewings, negotiating offers and doing the sales progressions to achieve the sales targets for BTLive. Another employee would remain responsible for buy to let targets.[88]Vanessa Robinson accepted in cross examination that the meeting on 12 April 2018 had been the last meeting between Rob Day, Luke and her, and she had made a mistake in the termination letter of 13 June 2018 in alleging that there had been no meetings after March 2018. The claimant (who was not present) and Rob Day have alleged that Vanessa Robinson shouted at Luke in this meeting. Vanessa Robinson disputes this. We do not find it necessary to make a finding on this allegation; it is not relevant to any issue we need to decide. We prefer the evidence of Vanessa Robinson to that of Rob Day in finding that Rob Day said, at that meeting, that it was a harder business than he had thought, and that the claimant was not listening. We consider we are unable to put much weight on Rob Day’s evidence for the reasons previously given. Such a comment would also be consistent with the email Rob Day sent the claimant on 25 May 2018 (see paragraph 105).[89]The Tribunal wrote to the first respondent on 13 April 2018, giving notice of AH’s claim, requiring a response by 11 May 2018 and listing AH’s case for a final hearing on 13 June 2018 with a time estimate of one hour (RB603).[90]Emails sent on 16 April 2018 show that Luke Robinson was still communicating normally with the claimant at this time.[91]Rob Day postponed a meeting with the claimant scheduled for 19 April 2018 because of car problems.[92]On 25 April 2018, Luke Robinson replied to a message from the claimant about whether he wanted to give the planned meeting with Rob Day the next day a miss, to say he was very busy getting ready for the handover with Kealy so could do with the time to get on top of it.[93]On 26 April 2018, Vanessa Robinson emailed the claimant and Rob Day. She wrote that Luke was not well and she had insisted that he take some time off. She wrote that he might be back the following Tuesday if he was better (CB225). In response to a concerned email from Rob Day, she replied that she would send Luke his regards and that she had told Luke to ignore his phone and emails and she would pick up whatever was needed.[94]Also, on 26 April 2018, the claimant wrote to Vanessa Robinson about a letter and report received from HMRC, which she wrote was as expected following the meeting with no NMW breaches. The letter from HMRC dated 20 April 2018 (RB528) asks the first respondent to provide by 11 May 2018 details of all the apprentices during the previous 3 years, to assist him with his enquiry. It is clear from this letter that the investigation has not, at this stage, concluded.[95]Vanessa Robinson wrote to the claimant on 27 April 2018. She wrote that “the issue with HMRC and the tribunal is currently ‘renting a room in my head’ and I could do with it being ‘boxed off’” (RB593).[96]On 3 May 2018, Luke responded to a message from the claimant, agreeing that he would see Rob Day the following week.[97]On 8 May 2018, Rob Day wrote to Vanessa Robinson and Luke Robinson asking if they could have the next training session on 10 May. Vanessa Robinson replied that they were too busy.[98]The claimant advised on the response to AH’s tribunal claim. The response drafted by the claimant stated that the respondent would be making an application to strike out the claim on the grounds of it being out of time and also alleging that the manner in which the claim had been conducted by AH had been unreasonable and vexatious and that it had not been actively pursued and for non-compliance with the Employment Tribunals Rules of Procedure 2013 (RB622).[99]On 15 May 2018, the first respondent paid around £4000 to Woodcock Ltd. The respondents had not, at this stage, informed the claimant or Rob Day that they disputed the invoice.[100]On 16 May 2018, Vanessa Robinson messaged the claimant to say that an inspector from HMRC had been on the phone and said that, as AH was taking her case to a Tribunal, he would no longer be involved. He said he was happy with his investigation and what he had seen. (RB554)[101]No meeting between Luke Robinson and Rob Day took place on 17 May. On 15 May 2018, Luke Robinson had emailed Rob Day to say that he had a market appraisal booked which could only be done on 17 May.[102]There was no meeting between Luke Robinson and Rob Day scheduled after that until 21 June 2018. The claimant had messaged Luke on 22 May asking when “normal service” would be resumed, and Vanessa Robinson replied in place of Luke, writing that they had holidays coming up, so they were looking at the week commencing 18 June. We accept Vanessa Robinson’s evidence that the message was genuinely meant at the time and they needed a break because it was so intense. She felt she and Luke were not coping. No meeting took place on 21 June 2018, being after the termination letter of 13 June 2018.[103]On 21 May 2018, HMRC wrote to Vanessa Robinson. They informed her that they were ceasing the part of their investigation relating to AH because of her employment tribunal proceedings. In relation to the check of their records, they wrote that the first respondent appeared to be paying their workers at least the correct rate of NMW.[104]Rob Day felt that, from May 2018, Vanessa Robinson was blocking him from supporting Luke to achieve his sales targets.[105]On 25 May 2018, Rob Day emailed Luke Robinson (CB509) writing that “I would genuinely like to offer you my hand of friendship for any help and support in any way I can.” He wrote that this offer would be completely on Luke’s terms only and not about the Beehive. He suggested meeting for a chat. He wrote that if Luke did not wish to take up his offer, that would be OK and he would not bother him again. The reference to not bothering Luke again, if Luke did not take up the offer, suggests that Rob Day thought, by this time, that the working relationships with the respondents were, or might be, coming to an end.[106]Luke replied on 30 May 2018, thanking him for the offer but writing that he was not ready to take him up on this. Luke Robinson wrote that he knew he needed to take his vacation mid June and come back refreshed. He concluded by writing that he looked forward to speaking to Rob Day soon.[107]On 5 June 2018, the first respondent made a further payment to Woodcock Ltd, making a total of £6234 paid to date.[108]Luke Robinson continued to send emails to Rob Day with daily plans and ongoing actions up to and including 8 June 2018. Luke went on holiday on 9 June.[109]Luke Robinson never told the claimant or Rob Day that he felt bullied by the claimant. We have no evidence that he told Vanessa or Steve Robinson that he felt bullied by the claimant. We find, based on Vanessa Robinson’s evidence, which is consistent with emails sent at the time, that she was concerned that the claimant was putting too much pressure on Luke. We accept that she had a perception that the claimant was bullying Luke.[110]AH wrote to the Tribunal setting out why she considered she was not engaged as an apprentice for the first respondent. The claimant drafted a response to this letter which Vanessa Robinson approved. This letter included an application to strike out AH’s claim as being vexatious (RB640).[111]In the early afternoon of 12 June 2018, the claimant messaged Vanessa Robinson to say that the duty judge was looking at the strike out application that day, but she was fully prepared if they needed to go. She then informed Vanessa Robinson that the duty judge had postponed the hearing and put it back to be listed for a full day’s hearing and an email had been sent to Vanessa Robinson (RB721-722).[112]The postponement of the hearing on 13 June 2018 was confirmed by a letter from the Tribunal dated 12 June 2018. Employment Judge Feeney’s views were recorded as being that no time would be saved by holding a preliminary hearing to consider whether the claim should be struck out as the issues were the same as would be determined at a final hearing. The matter would, therefore, be listed for a one day hearing and case management orders issued (RB651).[113]A settlement was reached in the case, through ACAS conciliation, later on 12 June 2018. The COT3 confirming this was signed by AH on 13 June and on behalf of the first respondent on 14 June 2018 (RB727). We accept the evidence of Vanessa Robinson that she thought they had no option but to settle, in the face of further months’ more stress, uncertainty, wasted time and costs.[114]We accept the evidence of Vanessa Robinson that the claimant had encouraged them to fight AH’s case, although others had advised the case was weak. The FSB had advised that AH did not appear to be an apprentice. We accept the evidence of Vanessa Robinson that, once AH had presented her claim, a number of advisers approached her, potentially with a view to offering representation in the Tribunal proceedings. They provided initial free oral advice. When Vanessa Robinson had explained the situation, they had advised that they did not consider the respondent had a good defence.[115]On 13 June 2018, Stephen and Vanessa Robinson wrote to the claimant and Rob Day, addressing this to “Pam and Rob”, writing that they were terminating their professional working relationships with immediate effect (RB729). The letter included a statement that they did not accept that a purported backdated employment contract drafted and introduced by Pam for herself in 2018 was valid or legally effective. They asserted that Insource had not provided psychometric sales and marketing training and coaching since March 2018 due to an irretrievable breakdown of trust and confidence. They provided a non-exhaustive list of matters which they said the irretrievable breakdown was due to. This was as follows:• “negligence and failures to admit or adequately address errors in relation to a purported apprenticeship;• a consequential and very stressful and unnecessary HMRC investigation into alleged minimum wage breach caused by the above failures to perform duties adequately and/or competently to establish and organise a valid apprenticeship;• the consequential employment tribunal claim caused by the above failures which has generated considerable stress and anxiety to key personnel at the Bee-Hive as well as financial losses including the sum of £3500 required to settle this claim due to the lack of realistic prospects of success, considerable anxiety and stress, business disruption and risks to reputation and business of reopening the HMRC investigation;• the unreasonable award to Pam Day by herself of a purported employment contract in about April 2018, backdated to New Year’s Day. We do not accept that this purported contract of £600 gross per month was fairly negotiated, nor did it bring additional valuable service to the Bee-Hive above Insource consultancy services. The award of the purported contract involved an obvious and significant conflict of interest. In any event, Pam is in repeated breach of this purported contract i.e. she has not requested consent to work for Insource or other businesses, has not adequately or at all reported at the Beehive and has not adequately notified the Bee-Hive of problems that have arisen (see above);• the issuing of a grossly inflated Insource invoice for the period 1 April 2017 to 31 March 2018 which failed to only claim 1/3 of additional sales turnover generated with the assistance of Insource and instead claimed 1/3 of all Beehive sales turnover. This invoice also fails to acknowledge additional sales that were not generated by any marketing but directly from the BeeHive’s existing contacts e.g. landlords, and existing contacts.• Bullying conduct at times by Insource, instead of coaching support, which has caused substantial stress and anxiety affecting the health and wellbeing of key Bee-Hive personnel and which you are already aware of.”[116]The letter asked the claimant and Rob Day not to contact by telephone, email or text message any Bee-Hive personnel, including Vanessa and Luke Robinson.[117]Vanessa and Steve Robinson both had input into this letter. Vanessa Robinson first said she could not recall whether Luke had any input. When it was put to her that Luke was on holiday at the time, she said that, if he was on holiday, he wasn’t involved. In answer to questions from the Tribunal, Vanessa Robinson said that Luke Robinson did not have any input into the decision to terminate the agreements or into the termination letter. We find that Luke Robinson was on holiday at the time the letter was written and did not have any input into the decision to terminate the claimant’s contract and into the sending of the termination letter. Vanessa and Steve Robinson were the only ultimate owners of the business and we find that they took this action, at least in part, because they wanted to protect their son. Vanessa and Steve Robinson took legal advice before sending the letter.[118]The letter was signed by Vanessa and Steve Robinson.[119]The letter was emailed to both the claimant and Rob Day because, following receipt of the invoice, Vanessa Robinson had discovered that both of them were the directors of Woodcock Ltd. Vanessa and Steve Robinson felt that all the relationships needed to be terminated; the relationship with Woodcock Ltd, acting through the claimant and Rob Day; and the separate contract with the claimant personally.[120]We find the letter set out the genuine concerns of Vanessa and Steve Robinson and their reasons for terminating the contract with the claimant as well as the business relationship with Woodcock Ltd.[121]Vanessa Robinson did not tell the claimant before this letter was sent, that she was dissatisfied with the claimant’s work in relation to the HMRC investigation and the AH employment tribunal claim.[122]The letter of 13 June 2018 operated to terminate the claimant’s employment with the first respondent. No disciplinary procedure was followed before the claimant’s employment was terminated. The claimant had less than two years’ continuous service as at the effective date of termination so did not have the right not to be unfairly dismissed.[123]In the respondent’s subsequent responses to the claimant’s claims, the respondent alleged that the claimant bullied Luke Robinson. The claimant asserts in her submissions that the allegation about bullying conduct in the letter of 13 June 2018 was about Rob Day, since he was the person who provided coaching support to Luke Robinson and that the respondent was, therefore, in its responses, changing its allegation. We do not agree with the claimant’s assertion. As previously noted, the claimant was providing a form of mentoring or coaching to Luke Robinson, although the claimant takes issue with the term being used in relation to her role, and although Rob Day provided the formal coaching sessions. We consider the respondent’s responses to be clarifying the allegation in the letter of 13 June 2018, rather than changing their allegation about the claimant. The respondents have never alleged that Rob Day bullied the claimant.[124]We accept Vanessa Robinson’s evidence that she felt under a lot of stress and pressure at the time and felt the AH trial was the final straw. She feared going into the office and finding Luke hanging. The stress was affecting her marriage. We accept the evidence of Vanessa Robinson that she was despairing from 9 March 2018, but did not take action earlier because, with the way the claimant spoke and the emails she sent, none of them wanted to give up.[125]Vanessa Robinson accepted in evidence that she had been mistaken, when writing the letter, in thinking the last meeting had been in March 2018. She realised afterwards that they had had a meeting in April 2018.[126]We accept the evidence given by the claimant in paragraphs 232 of her witness statement about her reaction when she received the termination letter of 13 June 2018, including hyperventilating, her heart racing and adverse impact on her sleep.[127]On 17 June 2018, Woodcock Ltd wrote to the first respondent threatening legal action. Woodcock Ltd sent a statutory demand, demanding payment of £18,702.48, being the balance of the amount included in the invoice dated 31 March 2018.[128]On 24 June 2018, Woodcock Ltd wrote a letter to the first respondent headed “Malicious Communications Act 1988”.[129]The claimant presented her first claim (case number 2416368/2018) against all four respondents to the employment tribunal on 28 September 2018. The second claim (case number 2415427/2018) against all four respondents was presented on 3 October 2018.[130]On 1 November 2018, the respondent’s representative wrote to the claimant seeking withdrawal of the two tribunal claims which had been presented by that date (RB984). The claim of victimisation is based on this letter. Mr Davies wrote that, unless the proceedings were withdrawn, he was instructed to make a strikeout application accompanied by a costs application. Vanessa Robinson read the letter and agreed it could be sent. Luke did not read the letter. Vanessa Robinson thought that Steve probably read it.[131]The letter makes an error in asserting that the claimant’s employment position was only created in response to the HMRC investigation (which the respondents were not aware of until March 2018) and being backdated to the beginning of January 2018. It is now accepted that the claimant’s individual contractual arrangement with the first respondent began in January 2018.[132]The letter sets out the reasons why the respondents consider the claim to be without merit, including denying the allegations of unlawful discrimination which, at that time, included complaints of disability discrimination. The claims are described as “a vexatious and unreasonable attempt to apply commercial pressure to our client and an unreasonable attempt to come within the tribunal’s jurisdiction.” The letter states: “It is patently obvious that the focus of the £1.5 million damages claim is your company’s “Insource licence contract” rather than any genuine employment relationship” and “It is not credible instead to attempt to base your claims for £1.5 million damages on a purported part-time £600 per month employment contract that even if genuine lasted less than 7 months, when you repeatedly make reference in the claims to “the Insource licence contract” which you unreasonably and unfairly claim had a 30 year term with no break-clause or notice period.”[133]The claimant presented the third claim against all four respondents on 13 November 2018 and the fourth claim against Luke Robinson only on 4 March 2019.[134]The claimant described the two beliefs on which she relies for her complaints of religion/belief discrimination in her first claim form and her witness statement paragraph 204 as follows: 134.1. “The claimant’s ‘empathy belief’, that empathy (and the amount/lack of) is the cause of/cure for relationship problems in the world including for example: in business marketing (relationship between buyer and seller); in the workplace (relationship between employer and employee); in the home (relationship between parents and children, husbands and wives, civil partners, unmarried partners), a belief that the claimant had held and practised since she discovered the role that a lack of empathy played in the malevolent personality traits and disorders such as narcissism, Machiavellianism, and psychopathy. 134.2. “The claimant’s ‘rule of law belief’, that if everyone followed the rule of law as the universal world best practice way to regulate people’s behaviour in all societies throughout the world then equality, fairness, and justice would be achieved, a belief that the claimant had held and practised since she was a teenager after watching a miscarriage of justice documentary and was the reason for her applying for a law degree and being the first person in her family to go to University.”[135]We accept that the claimant holds these beliefs and seeks to practise them. The respondents suggested, by reference to various emails from the claimant to and about Luke, that the claimant was lacking in the empathy she seeks to practise. It is not necessary for us to decide whether the claimant falls short in the practice of the beliefs she holds. It is only relevant for us to decide whether she holds these beliefs and seeks to practise them. We find that she does. In our conclusions, we will deal with the issue as to whether these beliefs constitute a relevant protected characteristic under the Equality Act 2010.[136]Vanessa Robinson referred in her witness statement to the claimant’s “mantra” being that she had empathy and they needed to practise it. We find, based on this, that Vanessa Robinson was aware that the claimant had the empathy belief.[137]Vanessa Robinson gave evidence that she was not aware of the claimant’s “rule of law” belief. There is no evidence that there was anything which would have alerted the respondents to the claimant having any particular “rule of law” belief that was above and beyond most citizens’ belief that they should comply with the law. We accept that Vanessa Robinson was not aware that the claimant had a “rule of law belief” as described by the claimant.[138]The claimant gave evidence that Luke Robinson had told her that six or seven women had caused him stress/distress and/or bullied him but he never wanted to take any action about it. We did not hear evidence from Luke Robinson. We do not find it necessary, for our decision, to make a finding of fact as to what Luke Robinson said to the claimant as to how he felt treated by these women. We will assume, for the purposes of our conclusions, that Luke Robinson made some comment to the claimant about feeling bullied by a number of named people who are women. Law Equality Act 2010 - Protected characteristics[139]Section 4 of the Equality Act 2010 (EqA) lists protected characteristics which include sex and religion or belief. “Belief” is defined in section 10(2) EqA as meaning “any religious or philosophical belief and a reference to belief includes a reference to a lack of belief”.[140]In Grainger plc and ors v Nicholson 2010 ICR 360, the EAT set out guidelines for the criteria to be met for a belief to be protected under the Equality Act 2010. These are that the belief:(1) is genuinely held;(2) is not simply an opinion or viewpoint based on the present state of information available;(3) concerns a weighty and substantial aspect of human life and behaviour;(4) attains a certain level of cogency, seriousness, cohesion and importance; and(5) is worthy of respect in a democratic society, is not incompatible with human dignity and is not in conflict with the fundamental rights of others. These criteria are replicated in the ECHR Employment Code as official guidance on what comprises a “religious or philosophical belief” for the purposes of the protected characteristic of religion or belief (paragraph 2.59). Direct discrimination[141]Section 13(1) EqA provides: “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others”.[142]Section 23(1) EqA provides that “on a comparison of cases for the purposes of section 13….there must be no material difference between the circumstances relating to each case.” Indirect discrimination[143]Section 19 EA defines indirect discrimination as follows: “(1) A person(a) (A) discriminates against another(b) (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if – (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,(c) it puts, or would put, B at that disadvantage, and(d) A cannot show it to be a proportionate means of achieving a legitimate aim.” Harassment[144]The relevant parts of section 26 EqA provide: “(1) A person(a) (A) harasses another(b) (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. …… (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.” Victimisation[145]Section 27 defines victimisation as follows: “(1) A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because – (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act – (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;(c) doing any other thing for the purposes of or in connection with this Act;(d) making an allegation (whether or not express) that A or another person has contravened this Act.” Prohibition of discrimination and meaning of detriment[146]Section 39(2) provides, amongst other things, that an employer must not discriminate against an employee by subjecting that employee to a detriment.[147]In Ministry of Defence v Jeremiah [1980] ICR 13, Lord Justice Brandon, in the Court of Appeal, thought “any other detriment” meant “putting under a disadvantage”. The House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337, said a sense of grievance which is not justified is not sufficient to constitute a detriment. Relationship between harassment and direct discrimination[148]Conduct which amounts to harassment cannot normally be direct discrimination because section 212(1) EqA provides that, subject to subsection 5 (which deals with situations where the Equality Act disapplies harassment), “detriment” does not include conduct which amounts to harassment. Proving discrimination[149]Section 136 EqA provides: “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.”[150]The tribunal makes findings of fact, having regard to the normal standard of proof in civil proceedings, which is on a balance of probabilities. A party must prove the facts on which they rely. A claimant must prove they suffered the treatment alleged, not merely assert it.[151]Once the relevant facts are established, the tribunal must apply section 136 in deciding whether there is unlawful discrimination.[152]The Court of Appeal in Ayodele v CityLink Ltd and another [2017] EWCA Civ 1913, reaffirmed that there is an initial burden of proof on the claimant; the claimant must show that there is a prima facie case of discrimination which needs to be answered. The Court of Appeal concluded that previous decisions of the Court of Appeal, such as Igen Ltd v Wong [2005] IRLR 258, remained good law and should continue to be followed by courts and tribunals. The Supreme Court in Efobi v Royal Mail Group Limited 2021 ICR 1263 held that the enactment of section 136 EqA did not change the requirement on the claimant to prove, on the balance of probabilities, facts from which, in the absence of any other explanation, the employment tribunal could infer an unlawful act of discrimination.[153]The effect of the authorities is that the tribunal must consider, at the first stage, all the evidence, from whatever source it has come, in deciding whether the claimant has shown that there is a prima facie case of discrimination which needs to be answered.[154]The EAT in Talbot v Costain Oil, Gas and Process Ltd and others UKEAT/0283/16/LA summarised, in paragraph 15, principles to be derived from the authorities in approaching the issue of whether there has been unlawful discrimination under the EqA as follows: “(1) It is very unusual to find direct evidence of discrimination; (2) Normally the Tribunal’s decision will depend on what inference it is proper to draw from all the relevant surrounding circumstances, which will often include conduct by the alleged discriminator before and after the unfavourable treatment in question; (3) It is essential that the Tribunal makes findings about any “primary facts” which are in issue so that it can take them into account as part of the relevant circumstances; (4) The Tribunal’s assessment of the parties and their witnesses when they give evidence forms an important part of the process of inference; (5) Assessing the evidence of the alleged discriminator when giving an explanation for any treatment involves an assessment not only of credibility but also reliability, and involves testing the evidence by reference to objective facts and documents, possible motives and the overall probabilities; and, where there are a number of allegations of discrimination involving one personality, conclusions about that personality are obviously going to be relevant in relation to all the allegations; (6) The Tribunal must have regard to the totality of the relevant circumstances and give proper consideration to factors which point towards discrimination in deciding what inference to draw in relation to any particular unfavourable treatment; (7) If it is necessary to resort to the burden of proof in this context, section 136 of the Equality Act 2010 provides in effect that where it would be proper to draw an inference of discrimination in the absence of “any other explanation” the burden lies on the alleged discriminator to prove there was no discrimination.”[155]A finding of less favourable treatment, without more, is not a sufficient basis for drawing an inference of discrimination at the first stage: Madarassy v Nomura International plc [2007] ICR 867, CA. In Dedman v Commission for Equality and Human Rights and others [2010] EWCA Civ 1279 CA, Lord Justice Sedley said that “the ‘more’ which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be furnished by non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred.”[156]The fact that a claimant has been subjected to unreasonable treatment is not, of itself, sufficient as a basis for an inference of discrimination so as to cause the burden of proof to shift: Glasgow City Council v Zafar [1998] ICR 120 HL. In that case, the House of Lords held that a tribunal had not been entitled to infer less favourable treatment on the ground of race from the fact that the employer had acted unreasonably in dismissing the employee.[157]If the claimant establishes facts from which the tribunal could conclude there was unlawful discrimination, the burden passes to the respondent to provide an explanation for its actions. The tribunal must find that there was unlawful discrimination unless the respondent provides an adequate, in the sense of non-discriminatory, explanation for the difference in treatment.[158]Less favourable treatment will be because of the protected characteristic if the characteristic is an “effective cause” of the treatment; it does not need to be the only or even the main cause. The motivation may be conscious or unconscious: Nagarajan v London Regional Transport [1999] IRLR 572 HL.[159]In some cases, particularly those involving a hypothetical comparator, it may be appropriate for the tribunal to proceed straight to the second stage, considering the reason why the respondent acted as it did. In Laing v Manchester City Council [2006] ICR 1519 EAT, Mr Justice Elias commented: “it might be sensible for a tribunal to go straight to the second stage…where the employee is seeking to compare his treatment with a hypothetical employee. In such cases the question whether there is such a comparator – whether there is a prima facie case – is in practice often inextricably linked to the issue of what is the explanation for the treatment.” Victimisation and conduct during legal proceedings[160]The House of Lords in Derbyshire and ors v St Helens Metropolitan Borough Council and ors 2007 ICR 841 held, in relation to a complaint of victimisation, that distress and worry induced by an employer’s honest and reasonable conduct in the course of its defence or in the conduct of any settlement negotiations cannot (save in the most unusual circumstances) constitute ‘detriment’ for the purposes of the Sex Discrimination Act 1975. The Sex Discrimination Act 1975 has been replaced by the EqA and the same principle will apply to victimisation complaints brought under the EqA. In that case, the employer’s actions had gone beyond what was reasonable to protect their interests in the litigation. Lord Justice Mummery, in British Medical Association v Chaudhary 2007 IRLR 800 CA, commented that St Helens “reaffirmed the essential statement of law that a person does not discriminate if he takes the impugned decision in order to protect himself in litigation.” Sections 111 EqA - Instructing, causing or inducing contraventions[161]Section 111 EqA provides:(1) A person (A) must not instruct another (B) to do in relation to a third person (C) anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or(2) or 112(1) (a basic contravention). (2) A person (A) must not cause another (B) to do in relation to a third person (C) anything which is a basic contravention.(3) A person (A) must not induce another (B) to do in relation to a third person (C) anything which is a basic contravention.(4) For the purposes of subsection (3), inducement may be direct or indirect.(5) Proceedings for a contravention of this section may be brought— (a) by B, if B is subjected to a detriment as a result of A's conduct; (b) by C, if C is subjected to a detriment as a result of A's conduct; (c) by the Commission.(6) For the purposes of subsection (5), it does not matter whether— (a) the basic contravention occurs; (b) any other proceedings are, or may be, brought in relation to A's conduct.(7) This section does not apply unless the relationship between A and B is such that A is in a position to commit a basic contravention in relation to B.(8) A reference in this section to causing or inducing a person to do something includes a reference to attempting to cause or induce the person to do it.(9) For the purposes of Part 9 (enforcement), a contravention of this section is to be treated as relating— (a) in a case within subsection (5)(a), to the Part of this Act which, because of the relationship between A and B, A is in a position to contravene in relation to B; (b) in a case within subsection (5)(b), to the Part of this Act which, because of the relationship between B and C, B is in a position to contravene in relation to C. Section 112 EqA – aiding contraventions[162]Section 112 EqA provides:(1) A person (A) must not knowingly help another (B) to do anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or(2) or 111 (a basic contravention). (2) It is not a contravention of subsection (1) if— (a) A relies on a statement by B that the act for which the help is given does not contravene this Act, and (b) it is reasonable for A to do so.(3) B commits an offence if B knowingly or recklessly makes a statement mentioned in subsection (2)(a) which is false or misleading in a material respect.(4) A person guilty of an offence under subsection (3) is liable on summary conviction to a fine not exceeding level 5 on the standard scale.(5) For the purposes of Part 9 (enforcement), a contravention of this section is to be treated as relating to the provision of this Act to which the basic contravention relates.(6) The reference in subsection (1) to a basic contravention does not include a reference to disability discrimination in contravention of Chapter 1 of Part 6 (schools).[163]Section 47B(1) Employment Rights Act 1996 (ERA) provides: “A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure.”[164]What constitutes a protected disclosure is defined by sections 43A to 43H ERA. Section 43A provides: “In this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H.”[165]The relevant parts of section 43B for this case are as follows: “(1) In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following –(a) [not relevant],(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,(c) to (f) [not relevant][166]It is alleged that disclosures were made to the claimant’s employer, so section 43C is relevant.[167]Section 48(2) ERA provides that in relation to a complaint including a complaint that the worker had been subjected to a detriment in contravention of section 47B “On such a complaint it is for the employer to show the ground on which any act, or deliberate failure to act, was done.”[168]In Babula v Waltham Forest College [2007] ICR 1026, the Court of Appeal held that an employee who informed the police and other enforcement agencies that he believed that an act of racial hatred had been committed could rely on the protection of the whistleblowing provisions to argue that his dismissal was automatically unfair, even though his belief was mistaken. The Court held that a belief may be reasonably held and yet be wrong. Submissions[169]The respondent had prepared written submissions running to 10 pages which were provided to the Tribunal and the claimant prior to the end of the Tribunal’s hearing with the parties on 16 September 2021.[170]The claimant sent her written submissions to the Tribunal on 14 October 2021. These consisted of 84 pages.[171]The respondent provided a response to the claimant’s submissions on 29 November 2021 which consisted of 3 pages.[172]We do not seek to summarise these submissions, which can be read, if required.[173]On 1 December 2021, the claimant wrote to the Tribunal applying for the Tribunal to consider the recent Court of Appeal judgment in Burn v Alder Hay Children’s NHS Hospital when making our decision. We do not consider this to be of any relevance to our decision. The claimant is not bringing a complaint of breach of contract or constructive unfair dismissal to which the Lord Justices’ comments about possibly implying into employment contracts a term that disciplinary processes should be conducted fairly might have had relevance. Conclusions Whether the claimant’s beliefs were protected characteristics under EqA
Conclusions
[174]We have found as a fact that the claimant had the “empathy” and “rule of law” beliefs she described in her first claim form and her witness statement. Applying the Grainger plc and ors v Nicholson 2010 guidelines, we reached the following conclusions. Both beliefs were genuinely held. They were not simply an opinion or viewpoint based on the present state of information available. The beliefs concern weighty and substantial aspects of human life and behaviour. The beliefs attain a certain level of cogency, seriousness, cohesion and importance. The beliefs are worthy of respect in a democratic society, are not incompatible with human dignity and are not in conflict with the fundamental rights of others. We conclude, therefore, that both beliefs were protected characteristics for the purposes of the EqA. Direct sex discrimination[175]The treatment set out in paragraphs 1.1, 1.2, 1.3, and 1.4 of the list of claims and issues all relate to the decision to terminate the contract and send the termination letter dated 13 June 2018 to the claimant and Rob Day and to write what was in that letter.[176]The letter was sent, in the form in which it appears at page RB729. It was sent without any prior disciplinary process.[177]We have found that R4 (Luke Robinson) had no input into the letter or the decision to terminate the contract. We have found that R2 (Steve Robinson) agreed that the contract should be terminated and the letter sent. We have not heard any evidence that Vanessa Robinson persuaded, induced, caused, aided or instructed Luke Robinson and Steve Robinson into agreeing to terminate the claimant’s contract, to agree to Vanessa Robinson’s reasons for terminating the contract or into signing the letter (which was signed by Vanessa and Steve Robinson, but not by Luke Robinson).[178]We have found that the letter was sent to the claimant and Rob Day because they were both directors of Woodcock Ltd t/a Insource, which had invoiced the first respondent for its services, provided through the claimant and Rob Day. The letter was sent to the directors of that company because it was terminating all arrangements with Insource, as well as the claimant’s contract with the first respondent as an individual.[179]We consider this is a case where, in accordance with the authorities, we can move straight to the issue of why the respondents acted as they did, assuming (without deciding), that the claimant has satisfied the initial burden of proof. We have found that the decision makers in relation to the termination of the claimant’s contract and the letter were Vanessa Robinson and Steve Robinson; Luke Robinson did not have an input into the decision and the letter. We have found that their reasons for acting as they did were set out in the letter (see paragraphs 115 to 120). Some of the reasons related specifically to the claimant’s individual contract; some related only, or as well, to the termination of the arrangements with Woodcock Ltd. Vanessa and Steve Robinson wanted to sever all ties with the claimant and Woodcock Ltd, so this required the termination of the claimant’s individual contract as well as the arrangements with Woodcock Ltd. The respondents have satisfied us that the reasons for the termination of the contract and the letter, as set out in the letter, are nothing to do with the claimant’s sex. We conclude, therefore, that the complaints of direct sex discrimination in 1.1, 1.2, 1.3, 1.4 and 1.7 of the list of claims and issues are not well founded.[180]Had we needed to decide whether the claimant had satisfied the initial burden of proof in relation to these complaints, we would have concluded that she had not, for the following reasons.[181]We understand from the claimant’s submissions, the evidence she gave, and the nature of her cross examination, that the claimant may be relying upon the following matters to prove facts from which, she argues, we could conclude that the decisions relating to the termination of her contract and the sending of the letter conveying that decision: 181.1. The failure of Steve Robinson and Luke Robinson to give evidence; 181.2. That the reasons given for termination of the arrangements, including the claimant’s individual contract, in that letter are untrue; 181.3. The respondents not taking the claimant through any form of disciplinary procedure, or otherwise raising their concerns with her, prior to the termination of the contract. 181.4. That the letter was sent to the claimant’s husband as well as the claimant and revealed information about her earnings under her individual contract. 181.5. What the claimant describes as a “sexist” culture at the first respondent. 181.6. Luke Robinson’s complaints about 6 or 7 women bullying him.[182]The failure of an individually named respondent could potentially be a matter from which adverse inferences could be drawn. Explanations have been provided by Vanessa Robinson for why she alone was giving evidence. If any adverse inferences could be drawn from the failure of Luke and Steve Robinson to give evidence, there is nothing to suggest that the adverse inference should be that the termination of the contract and the letter were connected in some way to the claimant’s sex. We have also found that Luke Robinson did not have any input into the termination letter.[183]We have found that Vanessa Robinson believed the reasons given in the letter to be true. There is nothing to suggest that this belief was related to the claimant’s sex.[184]The failure to take the claimant through a disciplinary procedure, or otherwise raise concerns with her, prior to the termination of the contract, would not, by itself, be capable of raising an inference of sex discrimination.[185]Vanessa and Steve Robinson sent the letter to Rob Day as well as the claimant because Rob Day and the claimant were both directors and owners of Woodcock Ltd. Whilst the claimant may have been upset by her personal earnings being revealed to her husband, the reference to her earnings from the individual contract is not a matter which suggests that sex played a part in the reason for her earnings being mentioned in a letter written to the claimant and her husband. The reference to her personal earnings was relevant to what was written in the letter.[186]We have found that Steve Robinson told the claimant in January 2017 that she was more like a man when dealing with Luke, because she had not had children, unlike his wife who was more protective of her children and referred once to Vanessa Robinson and the claimant as “you two women” (see paragraph 39). This could possibly be a matter which could, together with other matters, if there were other factors pointing that way, raise an inference of sex discrimination. We consider it insufficient, in the absence of other evidence pointing towards sex discrimination, to pass the burden of proof.[187]We do not consider that Peter’s use of “Hi Ladies” demonstrates that there was a generally sexist culture within the first respondent business. Peter was not involved in the decisions about the termination of the claimant’s contract or the termination letter. This is not a matter from which we consider we can draw any inference of discrimination.[188]We did not consider it necessary to make any finding of fact as to whether Luke Robinson had told the claimant that he had been bullied by 6 or 7 women. Assuming for the purposes of these conclusions that we had found this as a fact, we do not consider this to be a matter from which we could infer that the respondents treated the claimant less favourably because of her sex. Whether or not the claimant had felt bullied at various times by other women, the emails we have seen demonstrate that Luke Robinson was an enthusiastic pupil of the claimant over quite some time, despite tough messages that the claimant was delivering at times. This does not suggest to us that the claimant’s sex was a factor influencing how Luke Robinson treated the claimant. In any event, we have found as a fact that he was not involved in the decision to terminate the claimant’s contract and write the termination letter (see paragraph 117).[189]We conclude, having considered the totality of the evidence, that the claimant has not proved facts from which the Tribunal could conclude that the motive, conscious or unconscious, for the decision to terminate the claimant’s contract with the first respondent and the sending of the letter conveying that decision (along with the decision to terminate all arrangements with Insource) in the way it did was because of the claimant’s sex.[190]The treatment set out in paragraphs 1.5 of the list of claims and issues is an assertion that Luke Robinson made or sent or persuaded the other respondents and/or Matthew Davies and/or INHR Limited (the company providing Mr Davies’ services to the respondent) to make and/or send untrue statements (when Luke Robinson knew them to be untrue) in the responses to the claim 2416830/18 in particular that the claimant had bullied and/or discriminated against Luke Robinson.[191]We have heard no evidence that Luke Robinson had an input into the statements in the response about the claimant bullying Luke Robinson. We expect that, since he was a named respondent, he would have approved the response. However, approving a response which has been drafted is not the same as making or persuading others to make the statements. This part of the response referred back to the part of the termination letter that alleged bullying. We rejected the claimant’s argument that the reference in the letter was to Rob Day, since he had been the one coaching Luke Robinson. This part of the letter was written because it was the perception of Vanessa Robinson that the claimant was bullying her son, and she feared this was doing him harm. We conclude that the response was written as it was because of this perception of Vanessa Robinson. We do not know whether or not Luke Robinson shared this view at the time or has come to share this view since, and it is not necessary for us to reach a conclusion on this. We found that Luke Robinson did not have any input into the termination letter. If he approved the response, which we expect that he did, he did not cause this part to be changed. We conclude that the claimant has not proved the facts on which she relies for this complaint and we, therefore, conclude that complaint 1.5 is not well founded.[192]Even if the claimant had satisfied us that Luke Robinson had been involved in the statements in the response to claim 2416830/18 (other than by just approving a response which had been drafted in accordance with the instructions of Vanessa and perhaps Steve Robinson) we would have concluded that the claimant had not proved facts from which we could have concluded that this was because of the claimant’s sex. We refer back to our reasons for concluding that, in relation to complaints 1.1, 1.2, 1.3, 1.4 and 1.7, the claimant had not proved facts from which we could conclude that that treatment was because of her sex. Not all these matters could be of relevance to a complaint against Luke Robinson only, but, to the extent that they are, we conclude that they are not sufficient to satisfy the initial burden of proof on the claimant.[193]The treatment set out in paragraphs 1.6 of the list of claims and issues is an allegation that all four respondents instructed/induced/caused/aided Mr Davies of INHR to send to the claimant a letter of 1 November 2018, in terms of the process/manner it was sent and in terms of its content.[194]This letter was written by Mr Davies, a legal representative instructed by the respondents, in response to the first two claims presented by the claimant. We dealt with this letter at paragraphs 130 to 132 in our findings of fact. We move straight to the reason why this letter was written; it was to try to dissuade the claimant from continuing with her claims which the respondents asserted were without merit. The respondents have satisfied us that the writing of this letter was nothing to do with the claimant’s sex. We conclude that this complaint is not well founded.[195]Had we not adopted the approach of moving straight to the reason “why”, we would have concluded, on the basis of all the evidence, leaving aside the respondent’s explanation for the treatment, that the claimant had not proved facts from which we could conclude that this treatment was, in any material sense, because of the claimant’s sex. Harassment related to belief and/or sex[196]The claimant relies on the alleged treatment set out in paragraphs 5.1 to 5.6 of the list of claims and issues as treatment which she submits was harassment related to belief and/or sex. The beliefs relied upon are the “empathy” and the “rule of law” belief which we concluded in paragraph 174 were protected characteristics for the purposes of the EqA. 197. 5.4 does not appear to be a separate complaint. We have found that the remainder of the conduct set out in paragraphs 5.1, 5.2, 5.4 and 5.5 occurred as a matter of fact, with the exception of the allegation, in 5.2, that the sending of the termination letter was in contravention of basic human rights, which would be a matter of debate on which we do not consider it necessary to comment.[198]For the reasons we gave when considering the allegation of direct sex discrimination about Luke Robinson in paragraph 1.5, we conclude that the claimant has not made out the facts she relies upon for allegation 5.6. The complaint of harassment in 5.6 is not well founded.[199]We accept that the remainder of the conduct was unwanted by the claimant.[200]We do not have any evidence to suggest the purpose of the various acts was to violate the claimant’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for the claimant.[201]We do not consider it necessary to decide whether the conduct had the effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant, because of our conclusion about whether the conduct was related to belief and/or sex.[202]Applying the burden of proof provisions, the initial burden is on the claimant to prove facts from which the Tribunal could conclude that the conduct related to one or both protected characteristics. If she discharges this burden, the burden passes to the respondent to satisfy the Tribunal that the conduct was not related to belief and/or sex.[203]We consider this is a case where we can sensibly move straight to the question of why the conduct occurred and whether the respondent has satisfied us that it had nothing to do with the claimant’s sex and/or belief.[204]All the conduct relied on relates to the termination letter. The request not to contact Bee Hive personnel was included in that letter.[205]We have found that the decision makers in relation to the termination letter were Vanessa Robinson and Steve Robinson; Luke Robinson did not have an input. We have found that their reasons for acting as they did were set out in the letter. Some of the reasons related specifically to the claimant’s individual contract; some related only, or as well, to the termination of the arrangements with Woodcock Ltd. Vanessa and Steve Robinson wanted to sever all ties with the claimant and Woodcock Ltd, so this required the termination of the claimant’s individual contract as well as the arrangements with Woodcock Ltd. The request not to contact any Bee Hive personnel was part of the respondents’ attempt to sever all ties with the claimant and Woodcock Ltd.[206]The respondents have satisfied us that the reasons for the conduct relied on as constituting harassment were not related to sex. Given this conclusion, we do not need to reach a conclusion as to whether the claimant satisfied the initial burden of proof. However, had we had to do so, we would have concluded that she did not satisfy this initial burden, relying on the same reasons as given in relation to the complaints of direct sex discrimination.[207]We conclude that the complaints of harassment related to sex are not well founded.[208]In relation to the complaints of harassment related to belief, we again consider first the question of why the conduct occurred. The reasons for the respondents sending the termination letter and requesting the claimant not to contact Bee Hive personnel, were set out in the termination letter, as described in paragraph 205 above. The respondents have satisfied us that the reasons for the conduct were not related to either of the claimant’s beliefs: the empathy belief and the rule of law belief. Given this conclusion, we do not need to reach a conclusion as to whether the claimant satisfied the initial burden of proof. However, had we had to do so, we would have concluded, on the basis of all the evidence, that she had not. We have found that Vanessa Robinson was aware of the claimant’s empathy belief, but not the “rule of law” belief (paragraph 137). The respondents could not be motivated, consciously or unconsciously, by a belief they were not aware was held by the claimant. In relation to the empathy belief, we are unclear on what basis the claimant asserts that we could conclude that the respondents’ actions in relation to the termination letter were related to this belief. However, we have considered the evidence as a whole and, based on this, can find no facts which would enable us to conclude that the conduct was related to the claimant’s empathy belief.[209]We conclude that the complaints of harassment related to belief are not well founded. Victimisation[210]There is one complaint of detrimental treatment: that respondents 1, 2 and 3 caused, induced, instructed and aided the letter of 1 November 2018 to be sent to the claimant and the claimant’s husband. This is the letter from the respondents’ legal adviser, Mr Davies, which sought to persuade the claimant to withdraw her claims, setting out why the respondents considered the complaints to be without merit.[211]We conclude that the claimant did protected acts by presenting the three claims identified at paragraphs 9.2, 9.3 and 9.4 of the list of claims and issues.[212]The letter of 1 November 2018 refers to only two of those claims. The third claim, case number 2416830/18, was presented on 13 November 2018, after the letter of 1 November 2018. The presentation of the third claim cannot, therefore, be a cause of the writing of the letter of 1 November 2018 and is not a relevant protected act.[213]It is obvious that the letter was written because the claimant had presented the first two claims. The bringing of proceedings was the motive for the letter, in the same way that the bringing and continuing of equal pay proceedings in the case of Derbyshire and ors v St Helens Metropolitan Borough Council and ors was the motive for the Council’s letters to the claimants.[214]However, that is not sufficient basis for a conclusion that there was victimisation contrary to section 27 EqA. The claimant must have been subjected to a detriment. The question of whether the claimant the claimant was subjected to a detriment must be considered in the light of the St Helens case. In accordance with the St Helens case, not all steps taken by a respondent in an effort to protect their position in litigation will be protected from a charge of victimisation. However, an employer’s honest and reasonable conduct in the course of its defence will not amount to subjecting the claimant to a detriment.[215]We conclude, applying these principles to this case, that the respondents, in their involvement in the letter of 1 November 2018, did not go further than was reasonable to protect their position in litigation. The letter sets out reasons why the respondents asserted that the complaints were without merit and why the respondents would, if the complaints were not withdrawn, apply to have the complaints struck out, and apply for costs. The claimant did not withdraw her complaints and the respondents did make various applications for strike out and/or deposit orders. Some of the applications for deposit orders were successful. Indeed, all the complaints in the second claim were made the subject of deposit orders. These were no empty threats, made without any good grounds, to try to frighten the claimant into withdrawing meritorious claims. We conclude that the respondents did not subject the claimant to detriment by the letter of 1 November 2018. We conclude that the complaint of victimisation is not well founded. Indirect philosophical belief discrimination – s.19 EqA[216]We have, for reasons already given, concluded that the claimant held the “empathy” and “rule of law” beliefs and that these beliefs were protected characteristics.[217]The provision criterion or practice (PCP) relied upon for this complaint is “treating part-time employees less favourably than full time employees”.[218]We conclude that this is capable of being a PCP. However, the claimant has not satisfied us, on a balance of probabilities, that the respondent applied such a PCP. The claimant submits (paragraph 78 of her submissions), that the PCP is evidenced by the more favourable treatment of Kealy (a full time employee) in the manner, process and content of her dismissal compared to the manner, process and content of the claimant’s termination. We do not consider that a comparison of the treatment of two employees is likely to be sufficient to establish that the respondents have a PCP of treating part-time employees less favourably than full-time employees. The circumstances surrounding the termination of the contracts of Kealy (redundancy, because of lack of work) and the claimant (termination for the reasons previously outlined) were very different. The difference in treatment is more likely to relate to these circumstances than to evidence the existence of a PCP of treating part-time employees less favourably than full time employees.[219]If we had concluded that the respondent applied such a PCP, we would have concluded that the PCP does not put holders of the claimant’s beliefs at a particular disadvantage, compared to people without those beliefs. There is no evidence to support such a conclusion. We are not persuaded by the claimant’s submissions in paragraph 77 that the PCP puts people with a rule of law belief at a particular disadvantage compared to people without a rule of law belief as it violates their belief in the rule of law and creates an intimidating, hostile, degrading, humiliating and offensive environment for those with a rule of law belief by violating their basic human rights. There is no evidence that people with a rule of law belief would be more upset by being treated less favourably, because of being a part-time employee, than would someone without that particular belief. The claimant did not make any submissions that people who share her empathy belief would be put at a particular disadvantage by the PCP. There is no evidence that people with the empathy belief would be more upset by being treated less favourably, because of being a part-time employee, than would someone without that particular belief.[220]We conclude that the complaint of indirect philosophical belief discrimination is not well founded.[221]We consider first the issue of whether the claimant made protected disclosures. The claimant asserts that she made protected disclosures in a meeting with Vanessa and Luke Robinson on 9 April 2018. The disclosure of information the claimant relies upon, according to the list of claims and issues (paragraphs20.1 and20.2 ), can be summarised as being that Luke Robinson was failing to comply with QPs, leading the first respondent to fail to comply with their legal obligations under the Insource Licence Contract.[222]We found that, at the meeting on 9 April 2018, they talked about the need to improve sales figures and Luke not following QPs (see paragraph 85). The claimant did not satisfy us, on a balance of probabilities, that she talked about duties of company directors at that meeting.[223]The disclosure of information, in essence, was that Luke Robinson was not following the QPs and, because of this, not performing well enough and reaching his sales targets. The business was not, therefore, achieving the results which the respondents and Woodcock Ltd t/a Insource, had hoped.[224]The disclosure of information was made to the employer. It does not matter, in deciding whether this was a protected disclosure, whether or not the information was new, or had been discussed with Vanessa Robinson on previous occasions.[225]We consider next whether the claimant had a reasonable belief that this information tended to show that a person had failed to comply with a legal obligation to which he was subject. We understand the claimant is asserting that she believed the information disclosed tended to show that Luke Robinson and the first respondent were in breach of legal obligations.[226]The legal obligations relied upon were not set out in the list of claims and issues. From the claimant’s evidence, questions in cross examination and submissions, we understand the claimant to be relying on what she argues were legal obligations under the “agreement” between Woodcock Ltd and the first respondent and duties as a company director under s.172 Companies Act 2006 to promote the success of the company.[227]We conclude that complying with QPs and meeting sales targets were not legal obligations. Even if the “agreement” between Woodcock Ltd and the first respondent was a legally binding contract (and we make no finding about this for reasons previously explained), meeting QPs and sales targets are not legally binding obligations in this “agreement”. We conclude that the claimant, with her legal knowledge, could not reasonably have believed that Luke Robinson and the first respondent were in breach of any legal obligations created by the “agreement”.[228]We conclude that the claimant cannot reasonably have believed that failing to comply with QPs and meeting sales targets was a breach of Luke Robinson’s obligations as a company director under section 172 Companies Act 2006. We have found that the claimant did not talk about duties of company directors at the meeting on 9 April 2018. We consider it likely that this is an argument thought up after the event. We consider the suggestion to be far fetched that Luke Robinson could be regarded as being in breach of his obligations as a company director by not succeeding as well as had been hoped and not following, to the letter, internal processes (the QPs) which had been put in place.[229]We conclude that the claimant did not have a reasonable belief that the information she disclosed tended to show that a person had failed, was failing or was likely to fail to comply with any legal obligation to which he was subject.[230]Although the reasons given above are sufficient to conclude that the claimant did not make a protected disclosure, we go on to consider whether the claimant reasonably believed that the disclosures were made in the public interest. We conclude that she did not. We conclude that the claimant’s concerns at the time were that Luke’s failures to perform, as she saw it, meant that the business was not performing as well as had been hoped, and that it would not, therefore, be able to provide the financial return on Woodcock Ltd’s “investment” of her and Rob Day’s time, which the claimant had been anticipating. We conclude that the claimant did not have any wider public interest in mind.[231]We conclude, for the reasons given above, that the claimant did not make a protected disclosure. We, therefore, conclude that the complaints of public interest disclosure detriment are not well founded.[232]Given this conclusion, we do not need to consider whether the claimant was subjected to detrimental treatment as alleged in paragraphs24.1 to 24.9 of the list of claims and issues or the reasons for the treatment. However, we would have concluded in relation to 24.1 –24.2 and 24.7, that Vanessa Robinson was acting to protect her son because she observed he was under considerable stress and believed (rightly or wrongly – we do not need to decide) that the claimant was a major cause of that stress. In relation to 24.4, we would have concluded that any report of that nature by Vanessa Robinson to Steve Robinson was made because that was what she believed. We would have found that the claimant had not proved the facts on which she relied for 24.5 and 24.7. In relation to 24.8 and 24.9, we would have reached the same conclusions as to the reasons for the decision to terminate the arrangements with the claimant and Woodcock Ltd as we did when considering the complaints of direct sex discrimination. We would have concluded (in relation to the detrimental treatment which was proved), that the respondents had proved that the information disclosed on 9 April 2018 was not a material factor in their actions. The complaints of protected interest disclosure detriment would, therefore, have failed for these reasons if we had concluded that the claimant had made a protected disclosure. Instructing, causing or inducing and/or aiding contraventions contrary to sections 111 and 112 EqA 2010[233]We do not understand, having considered the evidence and submissions, the factual basis for these complaints.[234]To the extent that the complaints relate to allegations that the respondents instructed, caused or induced and/or aided other respondents to contravene the Equality Act 2010, we have concluded that there were no contraventions of the Equality Act 2010 by the respondents so these complaints must fail.[235]To the extent that the complaints relate to allegations that INHR Limited (the respondents’ legal advisers) committed contraventions of the Equality Act 2010 or was being instructed (or any of the other possibilities) to commit a contravention of the Equality Act 2010, we conclude that INHR Limited could not be contravening the Equality Act 2010 in its own right (as opposed to aiding unlawful acts by the respondents), in relation to the claimant since the Equality Act 2010 does not create any such liability for the type of third party relationship between the claimant and INHR Limited. These complaints would, therefore, fail on this basis.[236]We conclude that these complaints are not well founded.[1]Following the issue of the Tribunal’s judgment on liability, dismissing all the claimant’s claims, the respondents made an application for costs on 13 January 2022. The respondents sought payment of all their costs, to be assessed by detailed assessment, on an indemnity basis. The respondents provided a statement of costs, prior to the hearing, but after the claimant had sent written representations to the Tribunal. The respondents sought the costs set out in the schedule, which came to a grand total of £46,217.51.[2]The respondents’ application was 11 pages long and supported by a bundle of 37 pages. The claimant sent written submissions to the Tribunal on 21 June 2022, with an accompanying bundle of 105 pages. Also on 21 June 2022, the respondents sent the Tribunal its statement of costs.[3]The claimant had given some information about her financial means in her written submissions. The judge asked the claimant whether she wanted the Tribunal to take into account her financial means when deciding whether to make a costs order and, if so, the amount of the order (including whether the claimant should be ordered to pay costs to be assessed by detailed assessment). The claimant said she would like her financial means to be taken into account. We, therefore, heard evidence from the claimant about her financial means, given by the claimant answering questions put by the judge. Mr Davies declined the opportunity to cross examine the claimant as to her financial means.[4]Both parties made oral submissions. The claimant also provided the Tribunal with a copy of the Presidential Guidance on General Case Management and copies of a number of authorities, although we were not referred to these other than as mentioned in the claimant’s written submissions.
Facts
[5]We rely on our judgment on liability sent to the parties on 17 December 2021. References to paragraph numbers are to paragraphs in the reasons for that judgment except where indicated. Since our judgment on liability was only concerned with a small subset of the original claims, many complaints having been struck out or withdrawn prior to the final hearing, it is necessary in these reasons to provide some further information about the history of the claims. We also set out additional relevant information about the claimant and her financial means.[6]This case has a long and complicated history. The claimant presented four claims, with the first being presented on 28 September 2018. All related essentially to the same matter, which was the termination of the claimant’s contract with the first respondent by letter dated 13 June 2018, and events which flowed from this. The “employment” contract, establishing the relationship on the basis of which the complaints to the Tribunal are made, began in January 2018 and ended on 13 June 2018. In these proceedings, following a concession made by the respondents in or around October 2019, the claimant was accepted to be an employee within the definition in the Equality Act 2010 and a “worker” for the Employment Rights Act 1996. The respondents did not accept that she was an employee in the Employment Rights Act sense, and it was not necessary for her to meet that definition for the complaints pursued in this case. When we refer to “employment contract” or “employee” in these reasons, it refers to the contract by which the claimant was an employee in the Equality Act sense and her status as an Equality Act employee, rather than in the Employment Rights Act 1996 sense.[7]The letter dated 13 June 2018 terminated not only the claimant’s employment contract but also all working relationships between the respondents and the claimant, Woodcock Ltd (a company of which the claimant and her husband, Rob Day, are directors) and Rob Day. Our judgment on liability contains the history of the working relationships. The claimant and Woodcock Ltd’s involvement with the respondents predated the claimant’s “employment relationship” with the first respondent. As we noted in paragraph 36, there is a commercial dispute between Woodcock Ltd and the first respondent as to what, if anything, Woodstock Ltd was entitled to be paid for the services that company provided through the claimant and Rob Day. As we noted in that paragraph, issues relating to this commercial dispute are not a matter for this Tribunal. We were told that, following the Tribunal’s decision on liability, Woodcock Ltd has obtained a default judgment on a statutory demand for the balance of an invoice to the first respondent. We do not know whether Woodcock Ltd is likely to be paid the amount ordered by the default judgment or whether it will apply and succeed in having the judgment set aside and, if this is done, what the outcome will be of the dispute between Woodcock Ltd and the first respondent. This is not a matter for this Tribunal and we do not consider the actions of Woodcock Ltd in obtaining the judgment to be relevant to our assessment as to whether costs should be ordered to be paid by the claimant.[8]The details of each claim were long and not easy to follow. There was a lot of repetition between the claims. The claimant made complaints under the Equality Act 2010 relying on seven different protected characteristics (sex, race, disability, age, sexual orientation, marriage and philosophical belief), victimisation under the Equality Act, complaints relying on section 111 and 112 Equality Act (instructing, causing or inducing and/or aiding contraventions) and protected disclosure detriments. The claimant thought it was unfair that the first respondent terminated her employment contract without any prior disciplinary process. However, the claimant, having less than two years’ service, understood that she was not eligible to claim unfair dismissal and did not seek to do so.[9]The claimant has been a litigant in person throughout these proceedings. However, she is, on the basis of her own evidence, much more informed about legal matters than most litigants in person. She has a law degree. She has maintained, since studying law as an undergraduate, a close interest in legal developments, regularly reading law reports in the Times. She held herself out to the respondents as capable of providing legal advice on some matters, including in relation to Employment Tribunal proceedings brought against the first respondent, and did so. In this costs hearing, she showed us some of the legal textbooks which she had consulted, including some IDS handbooks. The claimant told us that she had sought legal advice in relation to these claims on a number of occasions. This advice is, of course, privileged so we do not know what advice she received, who gave that advice and we do not know what information she gave to those legal advisers, on the basis of which they gave their advice. We have formed the view that, if the claimant was advised that she had good grounds to pursue her complaints, she either had not given the advisers all relevant information or she was poorly advised. If the latter, we must still consider whether the claimant acted unreasonably. The claimant might have a remedy against those advisers if given negligent advice.[10]There were six preliminary hearings prior to the final hearing. Contrary to what the claimant said in submissions she had been informed, this is not, in our experience, common in preparation for a final hearing. Most cases involving Equality Act and/or protected disclosure complaints have one case management preliminary hearing prior to the final hearing. In complex cases, particularly involving litigants in person, it might take more than one hearing to clarify the claims and issues and/or there could be another preliminary hearing to consider strike out applications or the making of deposit orders or to deal with some preliminary issue. The holding of six preliminary hearings is exceptional.[11]Deposit orders were made in relation to the majority of the claimant’s complaints. She paid the deposit in relation to only one of those complaints (the protected disclosure detriment complaints we dealt with at the final hearing) and the other complaints were dismissed following failure to pay the deposits.[12]Although some strike out applications were made, it appears these were withdrawn so the Tribunal did not, in fact, determine any applications to strike out any of the complaints on the grounds that they had no reasonable prospect of success. The Tribunal did not, on its own initiative, consider whether to strike out any complaints on the grounds that they had no reasonable prospect of success and, in our experience, it would be very unusual for the Tribunal to do so in discrimination complaints where, generally, evidence has to be heard before a determination of the merits of the complaints can be made.[13]A summary of the history of the proceedings is as follows.[14]The claimant presented her first claim (2416368/18) on 28 September 2018. She presented her second claim (2415427/18) on 3 October 2018. She presented her third claim (2416830/18) on 13 November 2018.[15]The first case management preliminary hearing took place on 28 February 2019 before Employment Judge Ross. Judge Ross noted that all three claims related to the ending of the working relationship between the claimant and the respondents. She noted that there appeared to be extensive duplication between the three claims. Considerable time was spent trying to identify the claims the claimant wished to bring. Complaints of direct discrimination, indirect discrimination harassment and public interest disclosure detriment were identified. The claimant was relying on seven protected characteristics at this time: age, sexual orientation, sex, marriage, disability and race and philosophical belief. The claimant confirmed that she was not bringing a complaint of victimisation. In relation to a complaint under section 111 of the Equality Act 2010, the judge noted that the claimant was unable to identify who had instructed another person to contravene the Equality Act in relation to herself or what had been done. A preliminary hearing was listed to deal with what appeared to be a time limit issue. The respondents were invited to write in if they had an application to apply for striking out or the making of deposit order. The respondents did make such applications after the preliminary hearing.[16]It appears that it was agreed, subsequent to the first preliminary hearing, that there was no time limit issue to be considered. The preliminary hearing which had been listed to consider the time limit issue appears to have been converted into a preliminary hearing on 11 July 2019 at which applications for deposit orders were considered by Employment Judge Hoey.[17]The claimant presented her fourth claim (2402191/19) which was against the fourth respondent, Luke Robinson, only, on 4 March 2019.[18]On 28 March 2019, the claimant withdrew her disability discrimination complaint of indirect discrimination relating to thyroid dysfunction. This was the only complaint of disability discrimination made by the claimant.[19]Also on 28 March 2019, the claimant produced a schedule of loss. This claimed over £5 million compensation in total and included loss of financial benefits for 30+ years of Insource contracts (Insource was the trading name of Woodcock Ltd).[20]The second preliminary hearing took place on 11 July 2019 before Employment Judge Hoey. A number of deposit orders were made and a further preliminary hearing was listed to consider the worker status issue. The respondents, at this stage, were denying that the claimant was an employee within the Equality Act sense or a worker as defined in the Employment Rights Act 1996. Employment Judge Hoey recorded that the respondents withdrew the applications to strike out the claims on the grounds of having no reasonable prospect of success so the hearing focused on whether deposit orders should be made. Employment Judge Hoey later considered an application from the claimant under rule 29 to vary or set aside his orders (described by the claimant as an application for “reconsideration” of the deposit orders) and a varied order was sent to the parties on 14 January 2020. We do not, therefore, describe at this point orders which were made but return to these at the appropriate point in our chronology.[21]As noted in the previous paragraph, the claimant made an application for “reconsideration” of the deposit orders on 14 August 2019. She also made an application to strike out the responses to claims 2402191/19 and 2416368/18 and for deposit orders to be made against the respondents.[22]At a case management preliminary hearing on 30 October 2019 before Employment Judge Leach, following the issue of the fourth claim, the judge recorded that the respondents had conceded that the claimant was an Equality Act employee and worker for the purposes of the Employment Rights Act 1996. It was noted that there was no concession that the claimant was an Employment Rights Act employee, but none of the claimant’s claims depended on that status, so it was not a matter the Tribunal ever had to determine. The judge refused the claimant’s application to strike out the responses. The judge noted, in relation to the claimant’s application for deposit orders, that deposit orders could not apply to both parties on the same issues, so the claimant’s application for reconsideration of the deposit orders would need to be dealt with by Employment Judge Hoey, before consideration was given to the claimant’s own deposit order applications. The judge updated the list of issues and list of allegations and issued updated case management orders. The judge noted that an issue arose as to legal professional privilege, specifically in relation to the involvement of the respondents’ representative, Mr Davies, who confirmed to the Tribunal that he was a qualified solicitor. Mr Davies confirmed that the respondents had given disclosure of relevant documents, other than those covered by legal professional privilege. The claimant disputed this. The judge wrote that, if, following the discussions at the case management hearing, the claimant remained of the view that there was further disclosure to be made by the respondents, she should write to the respondents explaining what further disclosure she required, the basis on which she said those documents existed and, where the disclosure was in relation to correspondence between or advice provided by Mr Davies of INHR Ltd, why legal professional privilege did not apply.[23]The judge encouraged the claimant to obtain independent legal advice in relation to the claims she was bringing and the remedy being sought. The judge noted the presence of deposit orders and the possibility of costs orders against the claimant in the event that the claimant did not succeed in her claims. Again, the Tribunal spent considerable time addressing the allegations and issues with the claimant.[24]Employment Judge Hoey considered the claimant’s application for “reconsideration” of the deposit orders on the basis of written material, both parties having confirmed that they wished the matters to be considered in chambers. The judge varied his decision, revoking two of the 15 deposit orders he had previously made and reissuing the remaining 13. The two deposit orders he revoked were in relation to unlawful belief harassment and indirect belief discrimination (although the judge commented in relation to both that this was finely balanced). Deposit orders were reissued in relation to: direct discrimination complaints of philosophical belief, marital discrimination, sexual orientation discrimination and age discrimination; harassment complaints relating to age, sexual orientation and race; indirect discrimination complaints relying on race, marriage and sex; and public interest disclosure, in relation to the disclosure relied upon in the claim.[25]The judge commented that he did not accept that the fact the claimant disputed the reason why the respondent issued the termination letter and its contents, process and manner, resulted thereby (by itself) in there being more than little reasonable prospects of success for each of her claims.[26]The judge had refused to order deposits in relation to sex discrimination complaints. He rejected an application by the respondents for “reconsideration” of his decision not to grant deposits in relation to those complaints. He wrote “my view remains that, as the claimant is relying upon gender stereotypes, it cannot be said that there is little reasonable prospect of success and I do not vary that decision.”[27]The deposit order in relation to the public interest disclosure complaints was that the deposit should be paid in respect of the contention “that the disclosure relied upon was in the public interest”, as expressed in the summary section of the orders. In the fuller explanatory section, Employment Judge Hoey wrote that he found there was little reasonable prospect of success of the claimant “showing that the disclosure was in the public interest given this was a private contractual issue. I considered there to be little reasonable prospects of the claimant being able to show that the legal test for the disclosure being in the public interest had been satisfied”. The judge noted that this appeared to be a private matter in the light of the legal test as set out in Chesterton Global Ltd v Nurmohamed 2017 IRLR 837 (and considering Greenfly UKEAT/359/13). In the dismissal of the claimant’s appeal against this deposit order, in the sift process at the EAT, the Honourable Mr Justice Choudhury (President) commented that the reference to the disclosure having been made “reasonably in the public interest” does not set out the words of section 43B of the 1996 Act precisely. He wrote that, in all the circumstances, it could not be said that there was a misdirection in this regard. As the Tribunal explained, the disclosure was about an internal matter and “the public” relied upon all comprised stakeholders in the business. As such, it was unarguably correct to conclude that there was little reasonable prospect of establishing that there was a reasonable belief that the disclosure was in the public interest.[28]Although Employment Judge Hoey’s orders contain all four case numbers in the heading, it appears from the record of the next preliminary hearing, with Employment Judge Leach, held on 28 April 2020, and the judgment striking out claims for failure to pay the deposits (with the exception of the deposit identified to relate to the protected disclosure complaint), that the deposit orders applied to complaints contained in the first claim only, case number 2416368/2018.[29]The claimant appealed unsuccessfully against the making of the deposit orders. By letter dated 15 May 2020, President Choudhury dismissed the appeal on the sift. His reasons included the statement: “The claimant’s difficulty lies in the inherent weakness of her claims.” We have referred above to the President’s comments in relation to the deposit ordered as a condition of proceeding with the protected disclosure argument.[30]The claimant was advised of her right to make an application for a hearing under rule 3(10) and she duly made such an application. In an order sent to the parties on 5 January 2021, the Honourable Mr Justice Lavender rejected the appeal, writing that none of the 16 grounds of appeal had any reasonable prospect of success. He wrote: “3. All of the claims concerned the respondents’ letter of 13 June 2018 terminated the relationship between the respondents and the claimant and her husband and their company. The letter set out what the respondents contended were their reasons for doing so. The reasons given were both sufficient and non-discriminatory reasons for terminating the relationship. The Employment Tribunal was entitled to ask the claimant how she intended to counter the respondents’ case and to conclude that her claims had little reasonable prospect of success. “4. The Employment Tribunal noted in paragraph 37 of its reasons that there were no primary facts which the claimant was offering to prove from which the inferences on which she relied could be drawn. The claimant has identified no such facts in her Grounds of appeal. “5. It follows that the notice of appeal is so lacking in substance as to be totally without merit.”[31]The case had been listed for a final hearing beginning on 28 April 2020. Because of the pandemic, the final hearing was converted to a case management preliminary hearing on what should have been the first day of final hearing. However, Employment Judge Leach, who conducted that hearing, noted that the case would not have been ready to have been heard at a final hearing in any event: a number of case management orders had not been complied with and there remainded areas of dispute between the parties in relation to disclosure and other case management issues.[32]The judge noted that the respondents had applied for further deposit orders, those made by Employment Judge Hoey only relating to claims under case number 2416368/18. Judge Leach listed a further preliminary hearing in relation to the deposit order applications, the claimant having said she would not be comfortable dealing with those applications in writing and wished to speak in response to them.[33]Under the heading “outstanding issues regarding documents and bundles”, Judge Leach wrote: “the correspondence between the parties is disheartening.” He noted that both parties had claimed to have complied with case management orders relating to disclosure about comparators and each claimed that the other party had not complied. Various matters relating to disclosure, including an issue relating to legal privilege, if the parties had not resolved this, were to be dealt with at the next preliminary hearing. In relation to the hearing bundle, the judge noted that the claimant claimed that, in addition to the 1500 pages referred to by the respondent and shared with her, she had another 3500 pages which she said were relevant and would need to be read and considered by the Tribunal dealing with the final hearing. The judge urged the claimant to consider relevance and whether it would be necessary for the Tribunal to have copies of all these documents to deal with the matter fairly and justly. He referred to the overriding objective and urged the claimant to consider putting together a supplementary bundle of documents with far fewer pages than currently proposed.[34]The judge discussed with the claimant her applications for deposit orders. He recorded that she had applied for deposit orders because, in her view, the evidence disclosed to support the assertion that Luke Robinson had one or more health conditions was weak or non-existent. The judge wrote that this was a matter for the Tribunal to consider at the final hearing, to the extent that it was relevant to any the issues and it was not possible to say that any finding in relation to the health conditions that Luke Robinson may or may not have would make any difference to the success or failure of any the claims brought by the claimant. He commented that the applications were not ones claiming that there were little reasonable prospects of the respondents succeeding with their argument that they did not terminate the claimant’s contract because the claimant had made alleged protected disclosures and/or for one of the number of protected characteristic claims she was making. The judge relisted the final hearing for seven days beginning on 13 September 2021.[35]By a judgment sent to the parties on 16 July 2020, complaints subject to a deposit order, in respect of which the claimant had not paid a deposit, were struck out.[36]The next preliminary hearing took place before Employment Judge Leach on 19- 20 October 2020. The judge dealt with various disclosure matters. These included dealing with an application made by the claimant for disclosure of correspondence between the respondents and INHR Ltd and other documents relevant to advice provided. The respondents claimed the documents were privileged, relying on legal advice privilege and litigation privilege. The claimant argued that legal privilege did not apply. She accepted that Mr Davies of INHR is, and was at relevant times, a qualified solicitor, registered with the SRA with a current practising certificate. However, she argued that the company is not a firm of solicitors or barristers chambers, but a company in the business of providing HR advice, and the person contracted to provide the advice was INHR Ltd, not Matthew Davies. The judge noted that Mr Davies confirmed that he was a qualified solicitor and had a current practising certificate, was a member of the Law Society and was regulated by the SRA. The judge declined all the applications for disclosure.[37]The judge dealt with the respondent’s application for deposit orders. Employment Judge Leach made deposit orders against 49 out of 50 complaints under claims 2, 3 and 4. These included deposit orders against claims which the judge considered were made on the same basis as corresponding claims in claim one and which had been the subject of deposit orders. Deposits were ordered to be paid of £400 for each of the 49 claims, a total of £19,600. None of the deposits were paid so these complaints were struck out by a judgment sent to the parties on 18 January 2021.[38]A further and final case management preliminary hearing was held on 29 March 2021, with the record of this being sent to the parties on 6 April 2021. It had been intended that this would be a one hour hearing, to complete the updated list and other matters once it was clear which complaints the claimant would continue with. However, it appears the hearing was rather lengthier, dealing with more matters than originally anticipated. In addition to dealing with the list of issues and readiness for hearing, Employment Judge Leach dealt with an application by the claimant to review his decision on the disclosure of some correspondence between INHR and the respondents and to consider a further application made by the claimant for the disclosure of documents on the basis that unambiguous impropriety on the part of the respondents prevented them relying on the protection of privilege. The judge rejected the application for the lifting of “without prejudice” privilege, commenting that the concern raised came nowhere near a concern that would give rise to the lifting of privilege on the basis of unambiguous impropriety.[39]In the claimant’s application for the judge to reconsider his decision that legal professional privilege did not apply to correspondence between the respondents and INHR Ltd, the claimant alleged criminal conduct on the part of Mr Davies. The claimant alleged that Mr Davies had been engaged in criminal conduct in providing legal advice (prior to a regulatory change affecting solicitors which came in on 25 November 2019) and, because of this, the respondent should not be entitled to benefit from the protection of legal privilege stopping the disclosure of otherwise disclosable documents. Employment Judge Leach wrote that, as an allegation of criminal conduct had been made, he decided it was not something he could ignore and he wished to provide Mr Davies with a right of reply, which is why he was prepared to reconsider his previous case management decision. We deal with the arguments and decision in relation to this matter in some detail because a similar issue arose at the costs hearing in relation to whether a costs order could be made in respect of charges made by INHR Ltd for advice given by Mr Davies. The claimant’s arguments were that the criminal conduct was the act of claiming that legal advice given by Mr Davies prior to 25 November 2019, was protected by legal advice privilege when he was not entitled to make that claim. The claimant argued that, under the regulatory requirements which applied before 25 November 2019: INHR Ltd was not a party entitled to provide that advice because they were not a firm of solicitors regulated by the SRA; Mr Davies was not registered as in practice on his own account. You could only provide legal advice to which privilege would apply if he was a qualified legal or natural person who was capable and regulated with the SRA as trading as a sole practitioner or through a firm regulated by the SRA; and the SRA rules relating to in-house lawyers prior to 25 November 2019 prohibited Mr Davies from acting for and giving legal advice to external clients unconnected with the organisation employing him. The judge noted that the respondents sought advice from Mr Davies because he is a solicitor. Mr Davies is a solicitor regulated by the SRA with a practising certificate. If, as the claimant asserted, Mr Davies/INHR Ltd were unregulated before 25 November 2019 then that may or may not be a matter in which the SRA become involved. However, it did not prevent the respondents in this case, who retained and relied on Mr Davies as a solicitor, from relying on legal professional privilege.[40]On 19 April 2021, the claimant wrote to the Tribunal with an 8 page application asking Employment Judge Leach to reconsider his decision in relation to illegality/legal advice privilege sent to the parties on 6 April 2021. The judge refused to consider the claimant’s application for disclosure a third time, for reasons given in a letter sent to the parties on 28 May 2021.[41]The length of the final hearing was reduced to 4 days, with the agreement of the parties. Employment Judge Leach varied the case management order about the provision of witness statements, to give a deadline of 30 July 2021. He also gave detailed orders about the bundle of documents for the final hearing. Part 3 of this was to be for documents which the claimant wanted included, which the respondent had not agreed to. The order in relation to all parts of the bundle was that both parties should have an indexed and paginated bundle of documents by no later than 25 June 2021.[42]On 30 July 2021, at 12.48, the claimant emailed the respondent, writing: “Because of my disability I will not be able to exchange witness statements at 4 p.m. this afternoon. “I will try to be in a position to exchange witness statements at 4 p.m. on Monday afternoon if I can overcome the problems caused by my disability. I will update you on Monday morning. “Please support my request and do not attempt to threaten me or my husband in any way as I’m afraid that you will based on my past experience.”[43]The email did not specify the disability which was causing the claimant difficulties, or how this had prevented her completing her witness statement by 30 July 2021.[44]Mr Davies replied, writing that the respondents were ready to exchange witness statements that afternoon. He denied ever unlawfully or unreasonably “threatening” the claimant or her husband. He proposed a final extension of time with statements to be exchanged at 1 p.m. on Friday 6 August 2021. He wrote that, if the claimant should not be ready by then, he was instructed that the claimant would need to apply to the Tribunal for any further extension, which might be opposed by the respondent.[45]The claimant replied on 30 July, agreeing to the proposal for exchange on 6 August.[46]On 6 August 2021, the claimant wrote to Mr Davies at 7.54 a.m. as follows: “Unless we can agree between ourselves a further extension to the time we agreed to exchange witness statements, then I will have to apply to the Tribunal for an extension of time because, due to my disability, I still have 2 small sections to write and then reference to the documentary bundle evidence. My disability means that my concentration cannot be sustained for long periods and if pushed results in a relapse, thereby worsening my condition and that triggers cycles of SANTs.”[47]Mr Davies replied on 6 August 2021, expressing sympathy if the process was causing the claimant difficulties, but writing that his instructions were not to agree to any further extension of time for exchange of statements. He raised concern that the health problems the claimant referred to could impact on the final hearing. He wrote that he had annual leave booked before the final hearing and preparation needed to be undertaken following exchange and review of statements, and a further extension risked prejudice.[48]The respondent made an application to the Tribunal dated 19 August 2021 for an unless order, for the claimant to be required to exchange witness statements at the earliest date the Tribunal considered reasonable. The claimant had not, between 6 August and 19 August, made any application to the Tribunal for an extension of time to serve her witness statements.[49]The claimant responded to the respondent’s application on 20 August 2021. She wrote that one of her two disabilities (not specified in her email) causes her health issues, lack of concentration and suicidal thoughts. She wrote: “One of my two disabilities has caused me a specific health problem in relation to the writing of my witness statement that could not have been foreseen until I started writing it after the parties exchanged their evidence bundles at the end of June and that will be part of my witness statement.” The claimant requested to be given until 4 p.m. on Monday 30 August to complete and exchange her witness statement. The claimant did not specify the health problem that she asserted could not have been foreseen until she started writing the statement.[50]In our hearing on liability, the claimant requested extra time for her to provide written submissions because of tinnitus, which she said slowed her down. The claimant did not give us any other information about any conditions which may be disabilities and which would affect her ability to complete work to deadlines.[51]On 1 September 2021, an unless order made by Employment Judge Leach was sent to the claimant, requiring her to provide her witness statements by 6 September 2021. The claimant served her witness statements in compliance with the unless order so her claims were not struck out.[52]Although the claimant had written in her response to the application for an unless order that the parties had exchanged evidence bundles at the end of June, and the order had been for bundles to be exchanged by 25 June 2021, the claimant unexpectedly attempted to serve on the respondents a further bundle of documents very shortly before the hearing. This was delivered to an address near to Mr Davies when delivery could not be made to his address. He was not able to read the documents in this bundle until during the course of the final hearing. Mr Davies told us that the respondents were not seeking a postponement of the final hearing because of this late serving of documents.[53]The final hearing began on 13 September 2021, as scheduled. As noted in paragraph 7 and 8 of our judgment on liability, because of the pandemic, the parties were informed that the hearing would take place by video conference. The claimant objected to this so, on the first day of the hearing, time was spent dealing with how the remainder of the hearing should proceed. The claimant objected to Mrs Robinson being allowed to give her evidence by video, although she accepted that Mrs Robinson has the condition of sarcoidosis, an autoimmune disorder, which affects her respiratory system. For reasons set out at paragraph 9 of that judgment, we decided that Mrs Robinson should be allowed to attend remotely.[54]For reasons explained in our judgment on liability, we did not have time to hear oral submissions in the four days allotted for the final hearing and we decided to have written submissions from the parties.[55]Following the close of evidence, the claimant made applications to admit new evidence and strike out allegations, particular evidence from the respondent and the responses. All these applications were refused, as set out in paragraphs 14 to 21 of our judgment on liability.[56]On 29 June 2018, Steve Robinson, identifying himself as company director for the Bee Hive, wrote to the directors of Woodcock Ltd, (who were the claimant and her husband), with a without prejudice offer of £6000 for early settlement of all current, potential and future claims either party may have against the other. There was no response to this offer.[57]On 22 January 2020, a without prejudice save as to costs offer was made on behalf of the respondents to the claimant, offering payment of £15,000 in settlement of all current and potential claims either party may have against the other including all claims and potential claims by the claimant’s fellow director and their companies. This was expressed to include proceedings and investigations in respect of potential national minimum wage breach. There was no response to this offer.[58]There were, as detailed in the respondents’ costs application, a considerable number of costs warnings issued by the respondents from June 2018 until September 2021, a few days before the start of the final hearing. The June 2018 warning was contained in Steve Robinson’s letter of 29 June 2018 and was addressed to the directors of Woodcock Limited and related to seeking costs if the respondents applied to court for relief, following the statutory demand issued by Woodcock Limited. The costs warning in the letter containing the offer made on 22 June 2020 was addressed specifically to the claimant. We have not seen copies of all other costs warnings. The claimant’s financial means[59]In paragraph 61 of her written submissions, the claimant gave some information as to her ability to pay. She confirmed this information to be correct when giving oral evidence and gave some further evidence in answer to the judge’s questions. Mr Davies did not challenge her evidence about financial means in cross examination.[60]On the basis of the claimant’s evidence, we find the following. The claimant is not currently employed. Her income is a pension of just over £200 per month. She is now financially dependent on her husband. Due to ill health, the claimant does not anticipate being able to work again. The claimant describes the condition preventing her from working in her submissions as an incurable debilitating disability (without identifying the condition), but the Tribunal has not had to determine whether the claimant has a disability and we have seen no medical evidence, so make no finding as to whether the claimant is disabled within the meaning in the Equality Act 2010. The claimant is 65 years old. The claimant has personal ISA savings of £30,000. The claimant has no other substantial savings. There is approximately £3000 in a joint account used by the claimant and her husband to pay bills. The claimant lives in a house owned by her husband. The house has always been owned by her husband. The claimant has a Ford Fiesta car which is approximately 13 years old. She has no other assets of substantial value. The claimant is a director and shareholder of Woodcock Ltd. Woodcock Ltd has obtained a default judgment against the first respondent for £23,789.55 plus court fees. The costs incurred by the respondents[61]The respondents engaged INHR Limited to provide them with representation by Matthew Davies before and at the preliminary and final hearings in this case. Michelle Davies also attended some hearings. Both Matthew Davies and Michelle Davies are solicitors. Matthew Davies holds a practising certificate and is regulated personally by the SRA. We did not hear whether Michelle Davies holds a practising certificate but we note that Companies House records describe her as a non-practising solicitor, which suggests that she does not. Matthew Davies and Michelle Davies are directors and shareholders of INHR Ltd. INHR Ltd provides human resources functions. INHR Ltd is not an SRA regulated business.[62]Vanessa and Steve Robinson are personally liable for the fees of INHR Ltd, although Mr Davies has been representing all the respondents. We accept that those fees are as set out in the statement of costs, signed by Mr Davies to confirm that the costs do not exceed the costs which the respondents are liable to pay in respect of the work covered by the statement. This is a total of £46,217.51. We note that costs are calculated on the basis of discounted rates agreed for Matthew Davies of £55 per hour and for Michelle Davies of £55 per hour or £30 per hour in respect of certain work. Submissions[63]We do not seek to set out or summarise the written submissions made by the parties, which may be read if required.[64]Both parties made oral submissions. With the agreement of the parties, they were to be limited to a maximum of one hour each, subject to the claimant needing breaks (which would not count towards her time limit) if she suffered from difficulties caused by disability. The claimant was to let the Tribunal know if she needed to take a break. In the event, the claimant completed an hour of oral submissions without needing a break. Mr Davies took substantially less than one hour in oral submissions. Mr Davies made his submissions in the morning and the claimant made her submissions after the one hour lunch break.[65]Mr Davies, on behalf of the respondents made the following points in oral submissions. The respondents did not seek apportionment of costs between them; this would be too complex. The claimant’s conduct throughout had been vexatious and unreasonable. The claims had no reasonable prospect of success. There were a number of breaches of case management orders. The claimant started with 70 claims. The claims were entirely misconceived. There was no evidence to support the Equality Act claims. The claimant relied on an unreliable witness statement in her husband’s name which the Tribunal found she had probably drafted. The respondent had made offers in June 2018 (£6000) and January 2020 (£15,000) to which the claimant did not respond. In seeking more than £5 million compensation, she obstructed any realistic attempt to settle her claims. There were at least 13 written costs warnings by the respondent. A number specified that indemnity costs would be sought. The claimant was advised about the possibility of costs by Employment Judge Leach on one occasion. Employment Judge Leach preserved two of the cases pending cost applications although all the claims had been struck out. The claimant continued with her protected disclosure complaint after paying a £500 deposit. This was ordered for lack of reasonable prospect of success in establishing public interest. The claimant lost this claim. It was unreasonable to continue with this and the deposit should be paid to the respondents. There have been eight hearings including this one. The claims were unreasonably convoluted, confusing and complex. 65 deposits were ordered. The claimant vigorously resisted all applications but only paid one deposit.[66]Mr Davies submitted that the process had been characterised by challenges by the claimant, even after issues had been determined. The respondents had made the concession on Equality Act employee and worker status after only one preliminary hearing, within five months of the fourth claim being issued. Employment Judge Leach dealt with the legal status issue twice (pages 231 and 269 of the final hearing bundle). Despite that, the claimant still brought challenges about this. Employment Judge Leach had found on two occasions that legal privilege applied. Mr Davies said he was a qualified solicitor holding a practising certificate. The company is an HR consultancy. He submitted that he fell within the definition of a legal representative in rule 74. The status of INHR was not relevant. This had been determined at two preliminary hearings.[67]Mr Davies submitted that, when deposit orders were considered, the Tribunal would give the benefit of the doubt to the claimant that there would be evidence in support of her claims. In the event, the claimant’s only other evidence was the witness statement for her husband which she probably wrote herself.[68]Mr Davies submitted that case management orders were breached by the claimant. An unless order had to be obtained for her to provide her witness statements. She overran the bundle deadline. She did not comply with the order about comparator information.[69]The respondents submitted that all their costs were reasonable. The hourly rates were exceptionally low compared to rates allowed in the detailed guide for assessment. Indemnity costs could be awarded where the case was out of the norm. Mr Davies submitted that this was such a case. He referred to the following legal cases: Excelsior Commercial & Industrial Holding Ltd v Salisbury Hamer Aspden & Johnson [2002] EWCA Civ 879; Balmoral Group Ltd v Borealis (UK) Ltd [2006] EWHC 2531 (Comm); and Suez Fortune Investment Ltd v Talbot Underwriting Ltd [2019] EWHC 3300 (Comm), in relation to when indemnity costs may be appropriate. Mr Davies submitted that all the respondents’ costs should be paid on an indemnity basis because the claimant had exaggerated, brought misconceived claims and behaved unreasonably. She had breached case management orders, failed to engage in attempts to resolve the dispute, brought repeated challenges and drafted her husband’s witness statement. She had made unfounded allegations of dishonesty, perjury and impropriety against the respondents and Mr Davies.[70]The claimant made the following oral submissions. Her claims had been screened by the Tribunal when presented and at rule 26 stage and at preliminary hearings for no reasonable prospect of success. None had been struck out for no reasonable prospect of success. None of the judges who screened the claims said they had no reasonable prospect of success. The respondent made two comprehensive applications to strike out. Employment Judges Hoey and Leach did not deem any of her claims to have been vexatious, abusive or unreasonable. This has been litigated once by two Employment Judges. If her claims had no reasonable prospect of success, they would have been struck out.[71]The only breach of a case management order was in relation to witness statements. That was due to her health. The claimant asserted that she had met deadlines in relation to the hard copy bundle. She asserted that she had complied with the order to provide a separate bundle: she was told to physically bring additional documents to the first day of the hearing, which she did.[72]The claimant said she took professional legal advice before beginning her claims and on the basis of this crafted her claims. She took advice from legal helplines and read relevant sections of books.[73]Costs warnings were made to her company and not to her. Any offer to settle was not to settle her Employment Tribunal claim; the respondents were denying that she was an employee.[74]The claimant said she respected the deposit orders and did not run with any of the claims in respect of which orders were made other than one which was integral to the protected disclosure complaints.[75]The claimant said she had been advised that it was potentially fraud that the respondent had not paid her holiday pay, notice pay or for 13 days she worked in June.[76]The claimant disputed that she challenged almost everything. The reconsideration to Employment Judge Hoey was successful. She asserted that she had run a fairly normal case in terms of process and conduct. She had not unreasonably wasted the respondents’ costs. She asserted that she had been assured by others that it was normal to have this number of preliminary hearings. Two had been triggered by the respondent and two had been triggered by her because of documents.[77]The claimant asserted that, before November 2019, a non-SRA regulated business could not sell the services of an SRA regulated solicitor. She said she had checked this with the SRA and the Law Society. She did not refers to any specific provisions. She asserted that any solicitor wanting to legally represent a party in the senior courts had to be personally registered with the SRA as a practitioner solicitor and practice as sole earner. She submitted that INHR was not SRA regulated. To have rights of audience, they had to deliver through an SRA regulated business, otherwise this was a criminal offence. Otherwise, it was only an in-house solicitor of their employer. Mr Davies was not this. He gave advice to the respondent, not to his employer. The claimant asserted that the law changed in November 2019 and, after that, solicitors could practice on the same basis as barristers as freelance sole practitioners. Mr Davies did not do this, providing his services through INHR. The respondent could not be legally represented by INHR. The respondents could only claim an hourly rate as preparation time and not costs.[78]In reply, Mr Davies submitted that all the costs warnings issued on behalf of the respondents, once they had presented responses to the claims, were personal and not to Woodcock Ltd. Mr Davies that he did not believe there had been any holiday pay claims brought. Mr Davies said he was not aware of any issue that would not allow costs to be claimed. The issue was exhaustively dealt with in two preliminary hearings. The
Law
[79]Rule 76(1) of the Employment Tribunals (Rules of Procedure) 2013 provides: “A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that –(a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings have been conducted; or(b) any claim or response has no reasonable prospect of success; or(c) [not relevant].”[80]In accordance with rule 75(1)(a), a costs order is an order to make a payment to a party in respect of costs that the receiving party has incurred while legally represented or while represented by a lay representative.[81]“Costs” are defined in rule 74(1) as “fees, charges, disbursement or expenses incurred by or on behalf of the receiving party (including expenses that witnesses incur for the purpose of, or in connection with, attendance at a Tribunal hearing).[82]Rule 74(2) defines legally represented in England and Wales as meaning having the assistance of a person (including where that person is the receiving party’s employee) who has a right of audience in relation to any class of proceedings in any part of the senior courts of England and Wales, or all proceedings and county courts or magistrates’ courts.[83]Rule 78 provides that a costs order may order the paying party to pay the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party. Alternatively, a costs order may order the paying party to pay the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined, in England and Wales, by way of detailed assessment carried out either by a County Court in accordance with the civil procedure rules 1998 or by an Employment Judge applying the same principles. Costs awarded by detailed assessment may exceed £20,000.[84]In accordance with rules for detailed assessment, costs may be awarded on a standard basis or an indemnity basis. On the standard basis, doubts on the reasonableness and proportionality of costs are resolved in favour of the paying party, whilst the indemnity basis favours the receiving party.[85]Rule 84 provides that, in deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party’s (or where a wasted costs order is made, the representative’s) ability to pay.[86]The claimant did not identify, in her written or oral submissions, the legal provisions on which she relied for her submissions that a costs order cannot be made for the fees to be paid to INHR Limited by the respondents as INHR Limited is not authorised by the SRA to provide Mr Davies’ services. We have, however, looked at SRA guidance and the Legal Services Act 2007, and explanatory notes to that Act. Based on these, the general current position in relation to a non-SRA regulated organisation selling the services of a solicitor to external clients appears to us to be as follows. The solicitor can provide any form of legal services with certain exceptions. The only exception which, potentially, may appear relevant is the provision of reserved legal services to the public. Reserved legal services are defined in section 12 of the 2007 Act. The two types of service in this definition which, potentially, might appear relevant are the exercise of a right of audience; and the conduct of litigation. Each of these are defined further in Schedule 2 to that Act. Both relate to courts in England and Wales. The Employment Tribunal is not a court. We understand, therefore, that appearing as an advocate in the Employment Tribunal and acting in relation to proceedings brought in the Employment Tribunal are not reserved legal services. Our understanding of the relevant law is, therefore, that a non-SRA regulated organisation is entitled to sell to the public the services of a solicitor to conduct Employment Tribunal proceedings, both preparation and advocacy.[87]We have not considered the law in relation to the provision of a solicitor’s services to the public by a non SRA regulated organisation prior to November 2019 for reasons given in our conclusions. Conclusions Whether the criteria are met for the Tribunal to have the power to make a costs order
Conclusions
[88]We consider that, at its heart, this case was about a commercial dispute, in relation to which the Tribunal has no jurisdiction. The claimant’s real complaint was not about the termination of the low value, part-time HR role she had taken with the first respondent from January 2018. It was about the termination of all working relationships between Woodcock Ltd, the claimant and the respondents. It was the loss of the income stream which the claimant had anticipated, via Woodstock Ltd, for 30 years or so, from the respondents, viewed as a means of funding the claimant’s retirement, and the unfairness, in her view, of terminating all working arrangements, that was at the heart of her complaints. The schedule of loss from the claimant supports this view. If the complaints had, in reality, been about the ending of the “employment” contract, the schedule of loss would have been very much more modest in its aspirations. In our view, the claimant used whatever type of complaints she could find in the Employment Tribunal’s jurisdiction to put pressure on the respondents, rather than bringing complaints in the Employment Tribunal because of a genuine view that she had suffered discrimination contrary to the Equality Act 2010. The use of so many types of discrimination complaints in her claims (until many were struck out for failure to pay deposits) supports this view. We consider it highly unlikely that the claimant ever, in reality, thought that the respondents, by ending her “employment” contract, had discriminated against her because of, or for reasons related to, all those protected characteristics.[89]The claimant suggests that, because the Tribunal did not strike out any complaints, on its own initiative, or on the application of the respondent, on the grounds of having no reasonable prospect of success, this means that her complaints which were pursued to the final hearing did have a reasonable prospect of success. We do not agree with this analysis. The bar is high for striking out complaints of discrimination at a preliminary stage and the Tribunal must take the claimant’s case at its highest, assuming that they will be able to prove the facts they assert. As we previously noted, the respondents withdrew their strike out applications so the Tribunal did not decide on these applications and it would be very unusual for the Tribunal to consider striking out discrimination complaints on its own initiative. Even if a strike out application is heard and a decision taken not to strike out a claim, the fact that a claim has not been struck out as having no reasonable prospect of success does not mean that the issue has been litigated and the Tribunal cannot decide, in response to a costs application, that the claim had no reasonable prospect of success or that the claimant was unreasonable in the bringing of those proceedings. The Tribunal does not have access to all the material available to the parties at the time of considering such applications. The claimant can be expected to know whether they have material from which they could invite the Tribunal to draw inferences of discrimination, although we recognise that some such material may arise from evidence given by respondents’ witnesses.[90]We conclude that the Equality Act complaints and the protected disclosure complaints had no reasonable prospect of success. As explained in our decision on liability, the claimant did not have material from which the Tribunal could conclude that there was unlawful discrimination. The “disclosure” related to private matters and the claimant could not reasonably have believed that the disclosure was in the public interest; a necessary component of a successful protected disclosure detriment claim.[91]We conclude that the claimant knew, or ought reasonably to have known, from the outset of proceedings, that all, or the great majority of her complaints, never had a real prospect of success. She had sufficient legal knowledge at the start to realise this, and the position should have become even more clear to her as judges spelt out, at preliminary hearings, what would have to be proved to succeed in the complaints. The claimant knew, or should have known, from the start, that there was a lack of evidence from which inferences could be drawn of discrimination. There was nothing which could reasonably have led the claimant to conclude that her treatment was because of, or related to, one or more of the protected characteristics on which she relied.[92]The position in relation to the protected disclosure detriment complaints is perhaps more complicated, so we are less confident that the claimant would have known from the outset that these complaints had no reasonable prospect of success. However, the claimant was aware of the necessary components of a successful protected disclosure detriment complaint from, at the latest, the preliminary hearing before Employment Judge Ross in February 2019; the judge set out clearly the requirement for reasonable belief that the disclosures were made in the public interest in Appendix B to the record of that hearing. From this point on, we conclude that the claimant knew, or ought reasonably to have known, that the public interest disclosure detriment complaints had no reasonable prospect of success. The claimant was ordered to pay a deposit as a condition of continuing with the argument that she had a reasonable belief that disclosures were made in the public interest. The weakness of the protected disclosure complaints was identified by Employment Judge Hoey in making that deposit order in July 2019, and confirmed in January 2020. Two judges in the EAT upheld that deposit order. Despite this, the claimant persisted in pursuing her protected disclosure detriment complaints to the final hearing in September 2021.[93]We conclude that the claimant acted unreasonably in bringing and continuing to pursue the proceedings.[94]In addition, we conclude that the claimant acted unreasonably in the way the proceedings were conducted in relation to the following matters: 94.1. Raising for a third time, by her application for reconsideration dated 19 April 2021, (see paragraph 40 above) the matter of legal privilege which had already been dealt with on two occasions and then raising the same issue at this costs hearing about Mr Davies/InHR Ltd in relation to costs as had been determined in the context of the applications for disclosure. 94.2. Failing to comply with the case management order to exchange witness statements on 30 July 2021; not seeking agreement from the respondent to an extension of time until only a few hours before the deadline; not complying with the agreed extension; not making an application to the Tribunal for an extension of time; and not providing her witness statements until subject to an unless order requiring her to provide it by 6 September 2021, only a week before the start of the final hearing (see paragraphs 41- 50 above). 94.3. Providing a further supplementary bundle of documents to the respondents only shortly before the hearing, although the deadline for bundles was 25 June 2021 and the claimant had said in her response to the application for the unless order that bundles had been exchanged by the end of June (see paragraph 52 above). 94.4. Providing a wholly unrealistic schedule of loss (see paragraph 19). 94.5. Drafting all or large parts of Rob Day’s witness statement (see paragraph 31 of our judgment on liability). 94.6. Wasting time in the final hearing by making an unmeritorious application for Vanessa Robinson to give evidence in person at the Tribunal, rather than remotely, during high levels of COVID-19, despite accepting that Mrs Robinson has sarcoidosis, which affects her respiratory system (see paragraphs 8-9 of our judgment on liability). 94.7. Making unnecessary and unmeritorious applications after the close of evidence (see paragraphs 14-21 of our judgment on liability).[95]This may not be an exhaustive list of the ways in which the claimant acted unreasonably in the conducting of proceedings. However, it is not necessary, and would not be a proportionate use of the Tribunal’s time, to examine in any more detail the conduct of the case and evaluate the reasonableness of the claimant’s actions at any particular points. We do not rely on any conduct as being unreasonable, other than as specifically identified in these reasons, in reaching our decision on costs.[96]The respondents asserted that the claimant was repeatedly in breach of case management orders. We have referred to breaches of orders relating to witness statements and bundles above. If there were other breaches, we have not easily been able to identify them and we do not rely on any breaches of case management orders by the claimant other than the specific ones mentioned above.[97]The lengthy and complex way the claimant drafted her details of claim in four claim forms, and the length and complexity of other documents, including her witness statement and submissions, increased the time the respondents’ representative had to spend on the matter, increasing the respondents’ costs. The length and complexity was, in our view, unnecessary, bringing in many matters not relevant to the issues the Tribunal had to decide. Having regard to the claimant’s status as a litigant in person, albeit one with much greater legal knowledge that most litigants in person, we decided not to categorise this as unreasonable conduct of proceedings and do not rely on it in making the decision to award costs.[98]In relation to the protected disclosure detriment complaints, the claimant lost at the final hearing for substantially the same reason as the deposit was ordered i.e. that she did not reasonably believe that the disclosure was in the public interest. In accordance with rule 39(5)(a), the claimant is treated as having acted unreasonably in pursuing the argument that she made protected disclosures, the contrary not having been shown. The deposit of £500 is, therefore, to be paid to the respondents in accordance with rule 39(5)(b). This counts towards settlement of the overall costs order made by the Tribunal, in accordance with rule 39(6).[99]We conclude that the circumstances exist for us to have power to make a costs order against the claimant. The rules give us a discretion as to whether to make an order and, if so, how much this should be. We have power to award up to £20,000 of costs without detailed assessment and power to order all or a proportion of costs to be awarded, the amount of the costs to be subject to detailed assessment. If we order assessment, we may decide this should be on a standard or, exceptionally, indemnity basis. Whether costs can be awarded in respect of the fees of INHR Limited for the services of Mr Davies[100]The claimant has argued that no costs award can be made because INHR Limited is not regulated by the SRA. She argued this was the case before November 2019, when some change was brought in, and after November 2019.[101]Employment Judge Leach twice considered the argument, in relation to disclosure of documents said to be subject to legal privilege, in relation to the position prior to the change in November 2019. The orders sent to the parties on 6 April 2021 set out the judge’s reasons for dismissing the claimant’s arguments. Although the context was different, being in relation to a disclosure application, rather than a costs application, as here, the claimant’s arguments were the same. We consider, therefore, that the matter has been dealt with in relation to the situation prior to November 2019 and it would not be appropriate for us to re-open this issue. In any event, the larger part of costs incurred has been after November 2019, so it would not affect the decision we reach as to the amount of costs to be awarded if we had disregarded costs incurred prior to the change in November 2019.[102]In relation to the position after November 2019, we conclude that there is no bar to a costs order on the basis that INHR Ltd is not a company regulated by the SRA.[103]The respondents had the assistance of Matthew Davies, who is a person, being a solicitor holding a practising certificate, who has the right of audience in relation to any class of proceedings in any part of the Senior Courts of England and Wales, or all proceedings in county courts or magistrates’ courts. They were, therefore, “legally represented” within the definition in rule 74 of the Employment Tribunals Rules of Procedure 2013. A costs award could, therefore, be made.[104]It is unnecessary for us to decide whether it would have made a difference to the respondents’ ability to obtain a costs order if INHR Ltd had been acting unlawfully in selling the services of Matthew Davies to the respondents and we do not do so. We have concluded that, on the basis of the current law, INHR Ltd was not acting unlawfully. We set out our understanding of the current legal position in paragraph 86 above. INHR Ltd was not selling reserved legal services to the respondents. They did not, therefore, have to be regulated by the SRA.[105]We conclude that there is no bar to the respondents seeking a costs order in respect of costs they are liable to pay to INHR Ltd for the services of Matthew Davies in relation to this case. Our decision about awarding costs[106]We have concluded that the criteria are met for the Tribunal to have power to make a costs award for the claimant to pay costs incurred by the respondents. We must now consider whether to exercise our discretion to make an award and, if so, how much this should be.[107]We have decided it is appropriate to take into account the claimant’s financial means in deciding whether to make an order and in deciding the amount of the order. The claimant has sufficient financial means that an order may be made and for a substantial order to be made.[108]We have concluded that it is appropriate to make a costs order in this case and that this order should be substantial to reflect the unreasonableness of the claimant in bringing and conducting the proceedings when she knew, or ought reasonably to have known, that all, or the great majority of her complaints, had no reasonable prospect of success, as well as the other unreasonable conduct we have identified. Through her unreasonable actions, the respondents have been put to great financial cost in fees for representation by Mr Davies, although the hourly rate charged was, we note, discounted and very modest by comparison with most legal fees. There have been other serious, non-financial, effects on the respondents of the claimant’s actions in bringing and pursuing her complaints but we do not take the non-financial effects into account in determining the amount that the claimant should be ordered to pay.[109]We have considered carefully the respondents’ application for all their costs to be awarded, subject to a detailed assessment, on an indemnity basis. The lack of merit in the complaints brought by the claimant and the knowledge she had about this, or should reasonably have had about this, together with the other unreasonable conduct, could potentially have given the Tribunal grounds for making such an award. However, taking account of the financial means of the claimant, we have concluded that an order for the claimant to pay all the costs, subject to detailed assessment, on an indemnity basis would not be appropriate. The only substantial asset the claimant has is her £30,000 ISA, her pension is very modest and she has little, if any, prospect, of increasing her income in the future. We leave aside the very uncertain possibility that, through Woodcock Ltd, the claimant might obtain funds from the first respondent. In the circumstances, we have concluded that an award of £20,000 damages, the maximum the Tribunal can award without assessment, would be an appropriate award. We recognise, and regret, that this will leave the respondents considerably out of pocket, but consider that the decision we have reached is an exercise of our discretion which is fair and appropriate, having regard to the claimant’s financial means.