Miss E Peace v Commissioners for H M Revenue and Customs: 2500840/2020
EMPLOYMENT TRIBUNALS
Case No 2500840/2020
Between
Miss E PeaceClaimantCommissioners for H M Revenue and CustomsRespondent
Before
Employment Judge MartinIn person for claimantMr Sadiq (instructed by Counsel) for respondentDate 21 April 2021
JUDGMENT
[1]The claim submitted on 26 April 2020 is rejected.[2]The claimant’s claims of disability discrimination, victimisation and constructive unfair dismissal submitted by way of a claim form on 2 October 2020 are dismissed.
REASONS
[3]The Tribunal was provided with a bundle of documents for the preliminary hearing and a bundle of authorities which have been marked “Appendix 1 and 2”. The respondent had filed written submissions. The claimant had filed written submissions through her solicitors previously with regard to the first issue which this preliminary hearing was dealing with, and had then sent in a number of emails on 17 and 18 December. Both parties made oral submissions.
The Law
[4]The law which the Tribunal considered was as follows.[5]Rule 12D(a) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Early Conciliation Exemptions and Rules of Procedure Amendment Regulations 2020 which provides that: A case shall be referred to an Employment Judge where it is considered that the claim or part of it is one in which the tribunal has no jurisdiction ….being “One which institutes relevant proceedings but the early conciliation number on the claim form is not the early conciliation number on the early conciliation certificate.”[6]Rule 12(2)ZA “The claim shall be rejected if the Judge considers that the claim is of a kind described in subparagraph Da of paragraph 1 unless the Judge considers that the claimant made an error in relation to an early conciliation number and it would not be in the interests of justice to reject the claim.”[7]Rule 37(1)(a) of the Employment Tribunals Constitution and Rules of Procedure) Regulations 2013 states: “At any stage of the proceedings a Tribunal may strike out all or part of a claim on the following grounds: (a) that it has no reasonable prospect of success.”[8]Rule 39 (1) of the same Rules states: “Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim or response has little prospect of success it may make an order requiring a party (‘the paying party’) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument.”[9]Section 111(2) Employment Rights Act 1996 states: “An Employment Tribunal shall not consider a complaint under this section unless it is presented to the Tribunal –(a) before the end of the period of three months beginning with the effective date of termination; or(b) within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months.”[10]Section 123(1) of the Equality Act 2010 states: “Proceedings on a complaint may not be brought after the end of:(a) the period of three months starting with the date of the act to which the complaint relates; or(b) such other period as the Employment Tribunal thinks just and equitable.”[11]The Tribunal was also referred to, as indicated, a bundle of authorities, and in particular a number of cases as follows.[12]The case of Virgin Atlantic Airways Limited v Zodiac Seats UK Limited (formerly Contour Aerospace Limited) [2013] UKSC 46, and in particular paragraphs 17, 25 and 26 thereof. That case sets out the doctrine of res judicata. It states that it is a term which is used to describe a number of different legal principles with different judicial origins. The first principle is that once a cause of action has been held to exist, that outcome may not be challenged by either party in subsequent proceedings. This is “cause of action estoppel”, properly described as a form of estoppel precluding a party from challenging the same cause of action in subsequent proceedings. It is also a principle that even where the cause of action is not the same as the latter action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion, and is binding on the parties. This is described as “issue estoppel”.[13]There is a principle first formulated in Henderson v Henderson in 1843 which precludes a party from raising in subsequent proceedings matters which were not but could and should have been raised in the earlier ones.[14]Finally, there is the more general procedural rule against abusive proceedings which may be regarded as the policy underlying all of the above principles. At paragraph 25 it is noted that res judicata and abuse of process are juridically very different. Res judicata is rule of substantive law while abuse of process is a concept which informs the exercise of the court’s procedural powers.[15]In my view, and this is held in this case, they are distinct although overlapping legal principles with a common underlying purpose of limiting abusive and duplicative litigation.[16]At paragraph 26 it states: “Where the existence or non existence of a cause of action has been decided in earlier proceedings, to allow a direct challenge to the outcome, even in changed circumstances and with material not available before, offends the core policy against the re-litigation of identical claims.”[17]The next case the Tribunal was referred to was the case of Johnson v Gore Wood [2002] 2 AC 1 and in particular the judgment of Lord Bingham where he held: “The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings, if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the latter proceedings will be much more obviously abusive and there will rarely be a finding of abuse unless the latter proceeding involves what the court regards as unjust harassment of a party. It is however wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt a too dogmatic approach to what should in my opinion be a broad merits based judgment which takes account of the public and private interests involved, and that also takes account of all the facts of the case, focussing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same it is in my view preferable to ask whether, in all the circumstances, a party’s conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied and whatever the legitimacy of its dissent the rule has in my view a valuable part to play in protecting the interests of justice.”[18]The Tribunal also considered the case of Devine-Borley v Brent London Borough [1998] IRLR 525, in particular the headnote in that case which dealt with whether a second complaint alleging race discrimination was estopped. In that case the Tribunal, it was found, had not considered the special circumstances which could have made it unjust to apply the wider issue estoppel doctrine. The appeal was however allowed in that case. It went on to look at five particular factors (page 108 of the authorities bundle) related to the question of finding special circumstances for not applying the rule in Henderson. It outlined those five particular factors:(1) Firstly it said whether or not the race discrimination in that case had been any part of the subject matter of the litigation from the beginning;(2) Secondly, it looked at whether it had come out without warning;(3) Thirdly, it looked at the question of an adjournment;(4) Fourthly, it looked at whether special circumstances arose because nothing whatsoever seemed to have been done on the matter; and(5) Fifthly it looked at the question about Industrial Tribunals in that case and where cases were conducted by persons without a general knowledge of the law.[19]The Court of Appeal in that case looked at those five factors, argued to be special circumstances, and concluded that they were not special circumstances in that case for not applying the rule in Henderson. Firstly, it looked at the question of whether or not race discrimination was part of the original claim, and it stated that they would have rejected the present complaint i.e. that complaint of race discrimination, because the Court of Appeal held that there does seem to be precious little room for a finding that the dismissal was not unfair and yet the case of racial discrimination would have been.[20]It indicates at number two that that is not accepted either, whether or not there was any forewarning, and simply comments that it seems somewhat surprising bearing in mind the various assessments that appear to have been referred to in that case. It goes on number three importantly to refer to the fact that it could have been (that claim) grafted onto the existing unfair dismissal proceedings, and an adjournment if necessary should have been sought. It rejects the suggestion that an adjournment might have been refused. The Court of Appeal notes that the issue had come out during the course of Ms Elliott’s evidence but it did not consider that that would be, in their judgment, a proper reason to allow the subsequent case. It also dealt with the issue about the parties not being legally represented. It states that the rule in Henderson applies in full measure in ordinary courts irrespective of whether the person being estopped was or was not legally represented in the earlier proceedings. The detail of the Court of Appeal’s finding is found at pages 112-113 of the authorities’ bundle.[21]The Tribunal also considered the case of Agbenowossi-Koffi v Donvand t/a Gulliver Travel Associates [2014] EWCA Civ 855, and in particular paragraphs 19, 20, 21 and 23.[22]At paragraph 19 the Court of Appeal held that the Employment Judge was entitled to make the finding that the claimant had genuinely believed that if the respondent’s continuing dismissal of the monkey incident as banter and its failure to implement recommendations were acts of race discrimination then those matters would have been included in the first claim form, and they noted that the meeting referred to preceded the issue of the first claim by three days.[23]At paragraph 20 the Court of Appeal stated that in the absence of evidence the Judge had to make an assessment. She had to decide whether the claimant considered the new complaints to be acts of race discrimination. In my view she was fully entitled to conclude, for the reasons that she gave, that the claimant did not consider the new complaints to be acts of race discrimination.[24]The Court of Appeal went on at paragraph 21 to say that having found that the claimant did not consider the new complaints to be acts of race discrimination, and that the only reason why they were introduced in the second claim was an attempt to resurrect the first claim, the Judge had to decide whether this amounted to an abuse of process. It is noted that the Judge directed herself in accordance with the Johnson case.[25]At paragraph 23 the Court of Appeal held that for the reasons given the Employment Judge’s decision is not tainted by any error. It goes on to say that there is reliance on the fact that in Johnson Lord Bingham said that there would rarely be a finding of abuse unless the latter proceedings involve what the court regards as unjust harassment of a party, and he submits that there was no harassment of the respondent by the issue of the second claim in this case.[26]It is true that there is no evidence that the claimant issued the second claim in order to harass or oppress the respondent, but it does not follow that the second claim was not an abuse of process in the particular circumstances of this case. It notes in Johnson that the abuse of process doctrine in this context is a procedural rule based on the need to protect the process of the court from abuse and the defendant from oppression, and the question was whether it was oppressive or otherwise an abuse of the process of the court for the claimant to raise in second proceedings a claim which he could have raised in the first proceedings. The very fact that a defendant is faced with two claims where one could and should have sufficed will often of itself constitute oppression. It is not necessary to show that there has been harassment beyond what is inherent in the fact of having to face further proceedings.[27]The Tribunal was also referred to the case of London Borough of Haringey v O’Brien UKEAT/004/16, in particular the headnote which allowed the appeal and noted that the Employment Tribunal had failed to address the respondent’s objection that the Henderson v Henderson principle applied to all matters that had taken place prior to the hearing of the first Employment Tribunal claim (not just the lodgement of the claim). Either the ET had assumed that the principle only applied up the date of the later claim (which would be wrong in law), or it failed to address the point. Had it done so it would have been bound to find that the matters that had occurred prior to the hearing of the first ET claim could and should also have been included within those proceedings.[28]The Tribunal was also referred to paragraphs 59, 60 and 61 of that Judgment.[29]Turning then to the respondent’s appeal on the Henderson abuse point, this assumes that the claimant would have been able to apply to amend or add matters to the first ET proceedings even involving acts postdating the judgment of the claim. Something the ET has allowed in Prakash v Wolverhampton City Council. This was again plainly an issue before the ET and there is no rule of law stating that it could not be a Henderson abuse for a party to fail to amend to include all issues live between the parties prior to the full merits determination of the initial claim.[30]Paragraph 60 the EAT held: “Was the Employment Tribunal bound to reach the same conclusion in respect of section 15 return to work meeting? On the ET’s reasons on the Henderson abuse question I consider that it was. There is no reasoned explanation as to why a distinction was drawn between events occurring prior to the lodgement of the claim and those occurring after that date but still before the hearing of the first claim. It is common ground that it is possible to amend a claim to include matters occurring after its presentation (Prakash) and a pre-hearing review in the first ET proceedings would have provided the claimant the opportunity to do so…If the ET was entitled to find it was a Henderson abuse of process to pursue complaints in the second proceedings regarding matters occurring prior to the lodgement of the first claim, and I have concluded that it was, the same reasoning would apply in respect of events occurring thereafter prior to the full merits hearing (or at least sufficiently prior to have allowed for an amendment of the claim).”[31]At paragraph 61 the EAT on the Henderson abuse point allows the appeal and dismisses the cross appeal.[32]The Tribunal was also referred to the case of Eszias v North Glamorgan NHS Trust [2007] EWCA Civ 330 and in particular paragraph 29 thereof, where it is held: “It seems to me that on any basis there is a crucial core of disputed facts in this case that is susceptible to determination otherwise than by hearing and evaluating the evidence. It is an error of law for the Employment Tribunal to decide otherwise.” In essence, this is what Elias J held: “I do not consider that he would put unwanted gloss on the words ‘no reasonable prospect of success’. It would only be in an exceptional case that an application to an Employment Tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the claimant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation.”[33]The Tribunal was also referred to the case of Hendon v Ishmail [2017] IRLR 228 and in particular the headnote in that case. The EAT held that: “The purpose of a deposit order is to identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs ultimately if the claim fails. That is legitimate because claims or defences with little prospect causes costs to be incurred and time to be spent by the opposing party which is unlikely to be necessary. They are likely to cause both wasted time and resource and unnecessary anxiety. They also occupy the limited time and resource of courts and Tribunals that would otherwise be available to other litigants and do so for limited purpose or effect.”[34]The Tribunal was also referred to a number of other authorities dealing with time, being firstly Dedman v British Building and Engineering Appliances [1973] IRLR 379 where the EAT was looking at the question of what amounted to reasonable practicability and concluded that it meant “what was possible”, effectively.[35]The Tribunal was also referred to the case of Walls Meat Company Limited v Khan [1979] ICR 52 where the EAT held that it is not reasonably practicable if there is some impediment which reasonably prevents or interferes with or inhibits something from happening. It states the impediment may be physical or it might be mental, mainly the state of mind of the complainant, or in the form of ignorance of or mistaken belief with regard to essential matters. It states: “Such states of mind can however only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months if the ignorance on the one hand or the mistaken belief on the other is itself reasonably. Either state of mind will further not be reasonable if it arises from the fault of the complainant in not making such enquiries as he or she should reasonably in all the circumstances have made, or from the fault of his solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him.”[36]The Tribunal was referred to the case of NHS Foundation Trust v Zoo UKEAT/0066/18 where it was held that the claimant would not be entitled to simply rely on her confidence in what her advisers had done, the real question would then become whether the claimant's advisers had acted reasonably.[37]The Tribunal was also referred to the case of Riley v Tesco Stores Limited [1980] ICR 323 where the Court of Appeal held that “advisers” also applied to representatives from the Citizens Advice Bureau.[38]The Tribunal was also referred to the case of Adams v BT UKEAT/0342/15 in which case the EAT held that the relevant claim form for the purposes of determining the question of reasonable practicability was the second claim form which was presented, and the question was whether there was any impediment to timely presentation of that claim.[39]The Tribunal also finally considered section 33 of the Limitation Act 1980 which set out a number of factors for the Tribunal to consider in exercising its discretion. Those include:(1) the length of and reasons for the delay on the part of the claimant;(2) the extent to which having regard to the delay the evidence adduced or likely to be adduced is likely to be less cogent than if the action had been brought within the time allowed (so we are looking at the balance of prejudice);(3) the extent to which the claimant acted promptly and reasonably once they knew about the issue; and(4) the steps taken by the claimant to take such advice.
Findings
[40]The claimant was employed by the respondent as an Executive Officer since 2013. She issued proceedings to this Employment Tribunal on 26 June 2018 claiming disability discrimination. On 30 September 2018 the claimant issued further proceedings to this Tribunal advancing further complaints of disability discrimination. On 4 April 2019 the claimant issued a third claim to this Employment Tribunal for further claims of disability discrimination.[41]There were a number of preliminary hearings relating to those claims and a consolidated List of Issues was agreed at the final preliminary hearing in respect of the three claims, and is attached to the Judgment of Employment Judge Aspden dated October 2019 (the Aspden Judgement) to which I will refer further in due course.[42]A full merits hearing took place between 12 and 20 August 2019 in relation to those three claims. It took place before Employment Judge Aspden and members.[43]The claimant resigned from her employment on 27 January 2020. Prior to that she had contacted ACAS about early conciliation in relation to other allegations of discrimination and victimisation. The claimant presented a further claim to the Employment Tribunal on 26 April 2020 with an incorrect early conciliation certificate number. The respondent filed a response to that claim on 21 July 2020. In their response the respondent requested that the claim be rejected because it had the incorrect early conciliation certificate number.[44]On 30 July 2020 the respondent made an application to strike out the claimant's claim because it had an incorrect early conciliation certificate.[45]At that time the claimant was represented by the Citizens Advice Bureau (CAB) albeit it appears that she filed her ET1 to the Tribunal on 26 April 2020 herself.[46]On 22 July 2020 Employment Judge Arullendran requested the claimant to provide further information regarding her disability discrimination claims and her claims of victimisation. She was sent a pro forma Scott Schedule.[47]The claimant filed that further information on 18 August 2020. By that stage she was represented by solicitors. At the same time the claimant filed further particulars of the breaches she was relying upon in relation to her constructive unfair dismissal claim.[48]I am going to refer to that further information, being the Scott Schedule, and the further information relating to the constructive unfair dismissal claim in due course.[49]The Scott Schedule sent in on 18 August 2020 is at pages 49 to 55 of the bundle. Preliminary Hearing[50]A preliminary hearing took place in this case before Employment Judge Garnon on 25 August 2020 when the issues about whether the claim should be rejected because it had an incorrect early conciliation certificate number were canvassed. A public preliminary hearing was fixed to determine that issue first with a public preliminary hearing to be fixed to also deal with other preliminary points, which are those points before me today.[51]The issues to be determined by the Tribunal were set out in a notice of hearing to the parties on 4 December, as follows:(1) Whether the claims (that is, the claim of 26 April and the claim of 2 October) should be rejected or accepted.(2) If the claim of 26 April or 2 October, being the subsequent claim which I will deal with in due course, are accepted, whether they were presented in time and if not whether time for the presentation of those claims should be extended.(3) Whether the claims (or any of them) should be struck out pursuant to the rule in Henderson v Henderson, the doctrine of estoppel, on the grounds that they were an abuse of process, mainly the res judicata doctrine;(4) Whether any claims, allegations or arguments raised by the claimant should be struck out because they have no reasonable prospect of success or a deposit order should be made in relation to any claims or allegations.[52]The claimant issued further proceedings as indicated, being a new claim, on 2 October 2020, pursuing the same claims as set out in her claim form of 26 April 2020.[53]A public preliminary hearing took place before Employment Judge Jeram on 18 November 2020. That hearing had been convened to consider issues relating to the rejection of the first claim. However, at that stage the hearing did not proceed to deal with that issue, because an issue had arisen following the introduction of an amendment to rule 12, which had come into force on 8 October 2020. It was decided during the course of that public preliminary hearing that the matter of the early conciliation certificate should effectively be dealt with at this public preliminary hearing today. A discussion did however take place about the list of allegations being advanced by the claimant and the dates of the alleged acts, which it was determined would need to be considered and would be relevant for the preliminary hearing today.[54]The claimant was represented by counsel at that hearing, and her counsel was given several opportunities during the course of that hearing to consider providing a list of alleged allegations and the dates for those alleged acts. On the first occasion the claimant's counsel confirmed, and indeed confirmed on both occasions, that the document which had been produced on 18 August was the document that the claimant was relying upon and that no further information was required.[55]During the course of that preliminary hearing a discussion also took place about the claimant's complaint of constructive unfair dismissal. Her counsel confirmed that the constructive unfair dismissal claim was based on the preceding allegations of discrimination and victimisation, as is noted at paragraph 13 of that Order.[56]As I indicated earlier, the claims of constructive unfair dismissal were set out in a separate document that was submitted to the Tribunal on 18 August. They comprise 20 separate breaches which I will summarise below:(1) Constantly changing the claimant's role and changing her job description;(2) Adding live service team duties to the PSO role;(3) Treating the claimant differently than others in her team;(4) Putting the claimant in an environment that was a hostile environment and indicating she took issue with the new manager;(5) Going against the previously agreed adjustments with regard to the claimant's mental health issues;(6) Falsely accusing the claimant of self-harming;(7) The way in which the factfinder carried out investigations into the claimant’s grievance;(8) Accusing the claimant of bullying and causing stress to other staff;(9) Being made aware in September 2018 that the claimant had thoughts of suicide and doing nothing about it;(10) Ignoring the claimant’s complaint and ignoring evidence;(11) Issues around the claimant’s disability and dragging out formal processes;(12) Not conducting the grievance submitted in July properly, allowing the grievances to carry on for 13 months;(13) Communications between HR and senior management and various action taken against the claimant between September and December 2019;(14) Threatening the claimant with formal action regarding allegations of insubordination;(15) Denying knowledge of the extent of the claimant's mental health issues and using it as a reason not to make adjustments;(16) The attendance meeting on 23 January - the claimant and her union representative said would be detrimental to her mental health for her to take on the live service issues, but the respondent insisted that she would have to so;(17) The claimant being told at that meeting that her line manager would be permanently changed and that no adjustments would be made to the amended role;(18) The minutes of the meeting of 25 January which she says were fabricated;(19) She indicates also that she thinks the respondent had no intention of allowing her to come back to work; and(20) Claiming that there was a breach of implied duties to take reasonable care of the health and safety of employees.[57]The claimant’s further information with regard to her claims of discrimination and victimisation, as I have indicated, are set out at pages 49-55 of the preliminary hearing bundle. Those are the claims which she is relying upon in these proceedings, as was confirmed at various times in the hearing before Employment
Judge Jeram, as follows:
[58]Under section 15 the claimant is bringing a claim at 1.1 which she says is a refusal by the respondent to offer training for the PSA role and then a refusal to amend the role, which she says occurred on or around 11 July 2019;[59]She also refers to correspondence, being the second limb of that claim, in which she states allowing the claimant to carry on in the role would unfairly disadvantage others, and she says that that occurred on or around 6 August 2019.[60]I should make it clear that the claimant indicates dates when these matters occurred but she also suggests that they carried on until she resigned. 58. The claimant's claims for failure to make reasonable adjustments under sections 20 and 21 of the Equality Act 2010 are at 2.1, where she talks about constantly changing her role and team and changing her job description, which she says started on 15 March 2019. At 2.2 the claimant says adding live services team duties to the PSO role, which she says was any time from July 2019 onwards. Also at 2.2 the claimant talks about being treated differently to others in her team, being put in an environment that was hostile and going against previously agreed adjustments. That is her claim of a failure to make reasonable adjustments. Those are her disability discrimination claims. 59. In relation to the claimant’s complaint of victimisation under section 27 of the Equality Act 2010, at clause3.1 she has referred to false allegations self-harm and harassment allegations against various managers. She says that this occurred in December 2018/January 2019 and she says it was ongoing up to her grievance procedure until October 2019. 60. At3.2 the claimant refers to the way in which the factfinder carried out the investigation into the grievance and says this was in October to January 2019.[61]At 3.3 the claimant refers to the claim of accusing the claimant of bullying and causing stress to staff at various levels over the past three years, and says that this started in July 2019.[62]At 3.4 the claimant says being aware that she had thoughts of suicide and doing nothing about it, and she says that this occurred around 14 September 2018.[63]At 3.5 the claimant cites managers ignoring her complaint and ignoring evidence. She says this commenced in January 2019.[64]At 3.6 the claimant says that no grievance was conducted properly and earlier grievances being deliberately dragged out for up to 13 months, and she says that this commenced in October 2017.[65]At 3.7 the claimant refers to communications between HR and senior managers about various actions, and says this was in September to December 2019.[66]At 3.8 the claimant refers to being threatened with formal action regarding allegations of insubordination, and she says this was from September 2019.[67]At 3.9 the claimant refers to denying knowledge of the extent of the claimant's mental health issues and using it as a reason not to make adjustments, and says this was from July 2019.[68]At 3.10 the claimant refers to falsifying minutes, being the minutes of the 23 January meeting, and says that was from 25 or 26 January 2020.[69]At 3.11 the claimant refers to deduction of holiday, which she says occurred from February 2019.[70]As indicated, the claimant suggests that many of those matters are ongoing.[71]Allegation 3.1 is the same allegation which is at paragraph 7.1 of the Aspden Judgment which refers to allegation (a) and refers to S Young treating the claimant less favourably. A finding of fact was made regarding that allegation at paragraph 80 of the Aspden Judgment. The claim itself was dismissed at paragraph 135 of the Aspden Judgment, as the Tribunal in that case did not find that the claimant was disabled.[72]Allegation 3.6 is partly covered by allegation (d) at paragraph 8.1 of the Aspden Judgment, which refers to unfavourable treatment by DC in relation to the claimant's grievance. A finding of fact was made in relation to that allegation at paragraph 89 of the Aspden Judgment. That allegation was dismissed at paragraph 134 of the Aspden Judgment because, as indicated, the Tribunal did not find that the claimant was disabled.[73]Indeed findings of fact were made with regard to the claimant's three grievances in that Aspden Judgment. In relation to grievance one, being the grievance in July 2017 and the appeal which was then dismissed in October 2017, a finding of fact is made in relation to that at paragraph 58 of the Aspden Judgment, and at paragraphs 67-68 of that Judgment.[74]In relation to grievance two, relating to the second grievance in November 2017, a finding of fact was made with regard to that grievance at paragraph 69 of the Aspden Judgment.[75]In relation to grievance three, made in February 2019, findings of fact were made with regard to that grievance at paragraphs 85 and 89 of the Aspden Judgment.[76]All of the allegations in respect of the current claim before this Tribunal of disability discrimination, namely those set out at paragraphs 1.1,2.1 and2.2 of the Scott Schedule, arose before the full merits hearing of the earlier claims in August 2019.[77]In relation to allegation 1.1, there are two limbs to that allegation: the first relating to the refusal to offer training for the PSO role and refusing to amend that role to remove the line service duties. Both of those claims were relating to matters in July 2019 and arose before the full merits hearing in the earlier Employment Tribunal proceedings which took place in August 2019.[78]The second limb of allegation 1.1 arose on 6 August 2019, according to the claimant, and again occurred before the full merits hearing took place.[79]It is noted that the claimant in fact did seek leave to amend her claim on 10 January 2019 and added various new allegations, including those at paragraphs 7.2 and 8.2[80]In relation to allegation 2.1, that allegation (according to the claimant) arose on 15 March 2019, and in fact predated the claimant issuing the third set of proceedings in April 2019, and was again before the final merits hearing in August 2019.[81]In relation to allegation 2.2, that allegation also arose in July 2019 and again occurred before the full merits hearing.[82]In relation to allegation 3.1, that allegation also occurred (according to the claimant) before she issued the third set of proceedings in April 2019, and certainly occurred before the full merits hearing, so the claimant could have sought leave to amend her claim to bring all these claims in the earlier proceedings which she had issued.[83]In relation to allegation 3.3, that allegation occurred in July 2019 (according to the claimant) and again before the full merits hearing, and the claimant could and should have sought leave to amend her claim to bring that claim.[84]In relation to allegation 3.4, the claimant says she became aware of this on 17 or 18 August 2019 so again she could have sought leave to amend her claim during the full merits hearing.[85]In relation to allegation 3.5, this allegation occurred in January 2019 and predates the proceedings which she issued in April 2019 and was again before the full merits hearing in the earlier proceedings.[86]In relation to allegation 3.9, this issue (according to the claimant) occurred in July 2019 and again occurred before the conclusion of the full merits hearing in August 2019.[87]In relation to all of these allegations, the claimant could and should have sought leave to amend her claim and brought those claims within those earlier proceedings.[88]All of the claims which the claimant brought before the Employment Tribunal and which were heard in a full merits hearing by Employment Judge Aspden and members were dismissed. The claimant then subsequently withdrew her third set of proceedings following that Judgment.[89]In this case the respondent filed written submissions and went through those orally. The claimant, as I have indicated earlier, had through her solicitors previously filed a skeleton argument in relation to the first issue and not provided any written submissions in relation to the second issue but did make oral submissions. During her oral submissions she went through the document at 49-55, namely the Scott Schedule setting out the further information which she has provided as part of her claim to these proceedings. She submitted that the claims were in time, and she submitted that they were part of a continuing act. The claimant also further submitted that things happened after the earlier proceedings and that, she says, is why she did not seek leave to amend the earlier proceedings. She says that therefore she was not able to bring the claims in those proceedings.[90]The judgment of this Tribunal is that:(1) The claim submitted on 26 April 2020 is rejected.(2) The claims of disability discrimination, victimisation and constructive unfair dismissal submitted by way of a claim form on 2 October 2020 are dismissed. The Tribunal does not have jurisdiction to hear those claims pursuant to the doctrine in the case of Henderson v Henderson and abuse of process, referred to as the doctrine of red judicata, and further because the claims are out of time.[91]This Tribunal finds that the first claim of 26 April 2020 should be rejected. The Tribunal accepts, as conceded by the respondent, that it was an error made by the claimant in putting in the incorrect early conciliation certificate number on that form. However, the Tribunal does not consider that it is in the interests of justice to accept the claim for the issues more fully set out below.[92]On the contrary the Tribunal considers that it is in the interests of justice to reject the claim, as the Tribunal considers that the doctrine of red judicata, namely the rule set out in the case of Henderson v Henderson, applies to most of the claims being brought as part of those proceedings, in particular all of the claims of disability discrimination and most of the victimisation claims, as well as effectively the claim of unfair dismissal which flows effectively, on the basis of the claimant's own case and admission, from those claims.[93]This Tribunal has considered in detail the law relating to res judicata and the various cases referred to.[94]The Tribunal notes that, on the basis of the doctrine set out in the case of O’Brien based on the Henderson v Henderson doctrine, it is an abuse of process to bring proceedings that could have been brought before and as part of earlier proceedings, and where those matters had previously been disposed of at a full merits hearing.[95]This Tribunal, as indicated, finds that all of the claimant's claims of disability discrimination and most of her claims for victimisation, namely those at 3.1, 3.3, 3.4, 3.5, 3.6 and 3.9, namely six out of 11 claims, could and should have been brought in those earlier proceedings, and the claimant should have sought leave to amend in those proceedings to bring those claims if she believed that she was being discriminated against and/or victimised. Furthermore, some of those claims could have been brought as part of her third claim in those proceedings, namely they could have been brought as part of the third claim which she issued in April 2019, but the claimant chose not to add those claims into those proceedings. Further, two of those claims for victimisation, namely 3.1 and 3.6, have already been determined as part of the earlier proceedings in the Aspen Judgment, and therefore the claimant is estopped from bringing those claims on the basis of issue estoppel.[96]In relation to the complaint of unfair dismissal, I have outlined in summary those claims on the basis of the further information provided by the claimant. They are similar, if not virtually identical, to many of the claims of victimisation and discrimination being brought, and the detail set out in the further information of the discrimination claims at pages 49-55 of the bundle, so most of the breaches that the claimant is relying upon effectively have already been determined, or could have been brought, in the earlier proceedings. Again, the claimant chose not to do so, and certainly most of the breaches which she now relies upon occurred at a time when she could have brought those proceedings or sought leave to amend her claim.[97]Further, the claimant herself confirmed through her counsel, as is noted in the Order of Employment Judge Jeram on 18 November at paragraph 13 thereof, that the claim of unfair dismissal relies on the discrimination and victimisation claims which arose from that. Therefore she could not proceed if those or most of those claims were dismissed as has already effectively been determined and/or dismissed as an abuse of process because they could effectively have been determined as part of those earlier proceedings.[98]The Tribunal has then gone on to consider the position regarding the claim brought on 2 October. The Tribunal considered whether those proceedings are in time or if time should be extended. All of the claims are significantly out of time. The last act was on 27 January 2020, being the claimant's resignation. Many if not most of all the claims of discrimination are substantially more significantly out of time.[99]The Tribunal went on to consider whether time should be extended to allow all or any of those claims to proceed.[100]In relation to the complaint of unfair dismissal, the Tribunal considers that it was reasonably practicable for the claimant to have brought her claim in time. The Tribunal has noted the various authorities referred to in the Skeleton Arguments submitted by the claimant's representative and the respondent filed in respect of the earlier preliminary hearing. The Tribunal considers that it was possible for the claimant to have filed her claim in time as she did in fact file her earlier claim on 26 April, and there was nothing stopping her from doing so. Therefore she could have filed that claim in time.[101]In any event the Tribunal considers that the claimant did not file her claim within a reasonable time period thereafter as she was alive to the issue regarding the potential rejection of her claim in July, having been made aware of that on several occasions both through the response form and the application to strike out. Indeed the matter was then canvassed at the preliminary hearing in August yet the claimant did not present her further claim until 2 October 2020, some two months after she became aware of the potential issue. The Tribunal does not consider that it was therefore presented within a reasonable time period thereafter.[102]It should perhaps just be made absolutely clear that the claimant’s claim, therefore for unfair dismissal is effectively out of time, and the Tribunal is not minded to extend time.[103]In relation to the issues relating to extending time in respect of the claims of discrimination. This is in the discretion of the Tribunal and the Tribunal has to consider whether it is just and equitable to do so. The Tribunal has also taken account of the factors referred to at section 33 of the Limitation Act 1980.[104]The Tribunal does not consider that the acts of disability discrimination or victimisation are part of a continuing act of discrimination. They were all pleaded as separate allegations and the burden is on the claimant to satisfy the Tribunal that they were all part of a continuing act, and she was unable to do so. In any event, the claims have all been presented outside the time limit in relation to all those claims of discrimination, including any last allegation or last act of discrimination. The Tribunal does not consider that it is just and equitable to extend time to allow the claims of discrimination.[105]For the reasons indicated above, all the claims of discrimination and most of the claims of victimisation are effectively, in the view of the Tribunal, an abuse of process under the rule in Henderson v Henderson, because the claimant could and should have brought those claims as part of her earlier proceedings.[106]The Tribunal has noted the delay and reasons for that delay. The Tribunal has some sympathy for the position that the claimant found herself in with regard to the error made in relation to the early conciliation form, however for the reasons indicated above the only outstanding claims which are currently not dismissed following the Tribunal’s finding with regard to abuse of process are very limited in terms of the victimisation claims that could in fact proceed in any event.[107]The Tribunal, although it has some sympathy for the claimant, also notes that the claimant had advice from both the CAB and solicitors at various times. It has taken note of the fact that the claimant was made aware of the error regarding the EC number at an early stage in the proceedings, namely in July, and chose not to take any action at that stage.[108]Further, the Tribunal is also aware and notes that the claimant has brought three earlier claims before this Tribunal and is clearly aware of the issue of time limits.[109]However, the main reason the Tribunal does not consider it is just and equitable to extend time relates to the question of prejudice. The Tribunal considers that there would be substantial prejudice to the respondent. The Tribunal, as indicated earlier, already determined that most of the claims in these proceedings cannot be brought because of abuse of process. Clearly in any event many of those earlier matters would clearly impact on the cogency of any evidence which could be given and the recollection of parties, as they relate to matters which occurred a substantial period of time ago.[110]The Tribunal considered that the substantial prejudice to the respondent is in terms of the time and expense in having to defend these proceedings, which on the face of it have little merit (to which I will comment further in due course), and they follow on from a substantial merits hearing which took place between these two parties in August 2019 when all of the claims brought by the claimant were dismissed, and when many of these matters could and should have been brought as part of those earlier proceedings.[111]The Tribunal also considers that there would be substantial prejudice to allow the claimant to bring claims that, even at this late stage have not been properly pleaded, albeit that the claimant has been given various opportunities to do so and has failed to do so.[112]For those reasons this Tribunal is dismissing all the claims on the basis that it does not have jurisdiction to hear them because the claims are out of time and the Tribunal is not minded to extend time to allow any of the claims to proceed.[113]The Tribunal went on to consider the question of whether the claims should be dismissed under rule 37 for “no reasonable prospect of success”. However, it did not need to do so as the Tribunal has already determined that the claims should be dismissed for the reasons indicated earlier.[114]However, the Tribunal does want to comment on that matter in any event.[115]The Tribunal has taken account of the case of Eszias and would have been loathe to strike out the claim at this stage as having no reasonable prospect of success, as it may be,(and I put it no higher than that because the claimant has had various opportunities to properly plead her case and has failed to do so) the claimant would be able to provide some further information, and on that basis the Tribunal would not have been minded at this stage (and I emphasise this stage) to strike out the claim without having given the claimant the opportunity to have tried to provide some further information.[116]However, I do want to make it clear that if (and this is only “if”, clearly, because the claims have been dismissed) but if the Tribunal had considered this matter it would have considered that the claimant had little prospect of success and would have been minded to have ordered the claimant to make a deposit order or orders.[117]For those reasons the claimant's claims in their entirety are hereby dismissed.