Ms H M Angus v Academy Enterprises Trust: 2600051/2022 and Others
EMPLOYMENT TRIBUNALS
Case No 2600051/2022
Between
Ms H M AngusClaimantAcademy Enterprises TrustRespondent
Before
Employment Judge BlackwellMiss Murphy (instructed by Solicitor) for respondentDate 2 October 2024
JUDGMENT
[1]The case is adjourned.
REASONS
Background
[1]The purpose of today’s Preliminary Hearing was as follows; - 1.1. Whether the Tribunal has jurisdiction to hear the claims as it appears to have been presented out of time. 1.2. If the Tribunal does have jurisdiction to hear the claim whether Judgment should be entered in favour of the Claimant under Rule 21 of the Employment Tribunal Rules of Procedure; - 1.3. If Judgment is entered in favour of the Claimant what sums if any should be awarded to her by way of Remedy.[2]The hearing was conducted by CVP and, perhaps fortunately, Mr Ibikwe had difficulties in joining and could eventually only join by telephone. I say fortunately because shortly after the hearing was due to commence Miss Murphy emailed the Tribunal in the following terms: - “We are instructed by the Respondent in relation to the claim brought by Ms Angus in Watford Employment Tribunal Case No: 3300391/2021. We have not received any notice of an Open Preliminary Hearing listed today at 10.00am in Midlands East ET. However, we are concerned that there are concurrent proceedings regarding the same claim in Watford Employment Tribunal. If the Respondent is unrepresented at this hearing please can dial in details be sent to me as a matter of urgency and I will attend”.[3]Miss Murphy said that the Watford claim related to alleged discrimination, but which occurred prior to Miss Angus’s dismissal on the 31 July 2021. She also indicated that the Watford claim had been struck out but was subject to an application for a reconsideration which had so far not been determined.[4]Mr Ibikwe appeared to have no knowledge of the Watford proceedings. In turn Miss Murphy had no knowledge of the Midlands East proceedings.[5]Obviously, this is a highly unsatisfactory state of affairs and it was common ground that I should proceed not to determine any of the issues listed above.[6]I did, however, point out to Mr Ibikwe that given that the effective date of termination, and the last date pleaded in the claim form meant that it would appear that the primary limitation period for all of the claims brought by Ms Angus began to run at the very latest on 31 July 2021. The proceedings were not brought to the Tribunal until 9 January 2022. The Early Conciliation Certificate is of no assistance to Ms Angus because date A is the 25 November 2021 thus some three weeks after the primary limitation period ran out. I pointed out to Mr Ibikwe that he needed to look again at the point since in his submissions he stated that all claims were lodge in time which appears not to be the case.[7]After discussion it was agreed that the parties should have time to consider their position and should make representations to the Tribunal as to the way forward within 28 days of the date of the attached order. The Tribunal will send to Miss Murphy all of the relevant papers relating to the Midlands East claim and Miss Murphy will send to Mr Ibikwe the relevant papers from the Watford case. ORDERS Made pursuant to the Employment Tribunal Rules 2013 1. All Case Management Orders are stayed for the time being. 2. The parties shall within 28 days of the date of this order make representations to the Tribunal as to how the 2 claims are to proceed.[1]These claims have a convoluted and confusing history. The Claimant has issues 5 claims in all in 2 different Employment Tribunal Regions. The first claim (3300391/2021) she issued in the Watford Tribunal was struck out for failure to comply with the Tribunal’s orders. Claim 1 above repeats some of the claims in that claim. Claims 3 and 4 above were issued in both the Midlands East and Watford Tribunals and are identical. Claim 2 above was first issued in London Central and then transferred to Midlands East. There are various reasons for this confusion which I need not rehearse now that the claims are all consolidated in the Midlands East Region. There has been further confusion in the fact that the Claimant has sought to amend some of her claims without applying to do so and the Respondent is not yet formally a party to Claim 3, as no response has been submitted, although they have responded to the identical Claim 4 which has been dismissed on withdrawal.[2]The reason for this open preliminary hearing was to consider the Respondent’s applications for:(i) strike out or deposit order and costs in claim 1;(ii) strike out or deposit with costs reserved in claim 3; and(iii) The claim against Mr J Harris to be rejected in claim 4 and strike out or deposit order and costs on the basis that it is a duplicate of claim 3. Mr Gillies confirmed that the Respondent would not be pursuing costs at this hearing but reserved the right to do so at a later date.[3]At the conclusion of the hearing, I made orders for the future conduct of the claims.
The evidence
[4]There was before me a bundle of 513 pages of documents. Mr Ibekwe did not call the Claimant to give substantive oral evidence although she did give evidence as to her means. Submissions[5]Both representatives made submissions and referred to case law. I carefully considered the submissions although I do not rehearse them if full here. As I deemed them to be relevant, they are referred to in my discussion of the individual applications. Consideration of the applications[6]I deal firstly with the Claim 1 application for strike out of parts of the claim or for a deposit order. This claim, in certain matters of less favourable treatment alleged, is identical to the claim which has already been struck out by Watford Employment Tribunal. This is the case in clause 2.1.2 at (i)-(iv). As Mr Gillies submitted, in effect, these allegations have already been litigated and struck out after Early Conciliation under reference no. R103362/21/63 (page 49 of the bundle). Following the decision in The Commissioners for H M Revenue & Customs v Garau UKEAT/0348/16/LA they cannot be litigated again in a subsequent claim under a later E C Certificate reference no. Consequently, these 4 matters relied on cannot be re-litigated and are struck out.[7]But Claim 1 then goes on to list a further 12 matters which are alleged to constitute less favourable treatment. Mr Gillie concedes that the dismissal element is just within the time limit and also concedes that items (xiii) – (xvi) could potentially be found to be continuing acts at the final hearing. I do not agree that the items at (v)-(xii) are not capable of being continuing acts and this should also be determined by the Tribunal.[8]Matters are further complicated, however, by the Claimant’s purported amendment to the claim form wherein the matters at (viii) and (x) have been deleted. I interpret this as a withdrawal of those allegations.[9]The application in Claim 3 is to strike out all of the claims as having no reasonable prospect of success. They are claims for suffering a detriment as a result of making a protected disclosure and for “disability victimisation”. It is unfortunate that these claims are pleaded in a very confused manner.[10]Mr Ibekwe argued that the Claimant’s protected disclosure was made by the Claimant to Dr Adrian Massey, Consultant Occupational Physician, of Duradiamond Healthcare in a consultation which was reported on 8 March 2021 (page 261). Although, when pressed, Mr Ibekwe could not identify any disclosure to Dr Massey, I assume he was referring to the comments at page 262 where the Claimant talked about how she felt she was under pressure in her job and was not supported by the Respondent. Mr Ibekwe submitted that this amounted to a protected disclosure as Dr Massey referred to it in his report sent to the Respondent.[11]This is not an argument with any merit. Firstly, Dr Massey is not a prescribed person for whistleblowing purposes and, secondly, the disclosure must be made by the person who relies on it. S.43A of the Employment Rights Act 1996 makes clear that the disclosure must be made by a worker. Dr Massey’s report, after a private medical consultation with the Claimant cannot make the disclosure. Since the disclosure must also be made in the public interest, I do not accept that a confidential medical consultation is likely to lead to a disclosure in the public interest. Accordingly, I do not find the alleged disclosure is a qualifying disclosure.[12]Moreover, even if it was a qualifying disclosure, consideration of the alleged detriments reveals that they are not detriments covered by the ERA. The Claimant states that they are(i) failure to recognise that the Claimant is a disabled person from the date of Dr Massey’s report until “a material date in the future” when the Respondent concedes she is disabled and(ii) the consequential stress and anxiety the Claimant is required to endure before “the Respondent eventually capitulates and treats her as a person with a disability whom deserves respect and decorum”.[13]Both of these alleged detriments are based on the Respondent’s failure to acknowledge in its responses that the Claimant’s autism spectrum disorder is serious enough to amount to a disability. Mr Gillie referred me to the judgment in BMA v Chaudhary [2007] EWCA Civ 788 which at paragraph 177 says, “a person does not discriminate if he takes the impugned decision in order to protect himself in litigation”. This is, of course, exactly what the Respondent has done. Mr Ibekwe considered this amounted to a detriment because it was inevitable that the Claimant would be found to be disabled. He said the Tribunal cannot allow the Respondent to play with people’s lives but, in my view, the Respondent is doing nothing more than in a perfectly understandable way merely protecting its interests. Whether the Claimant is disabled is a matter to be determined by the Tribunal and not by the Claimant or her representatives and to suggest otherwise is an unsustainable argument. Indeed, the Respondent has made the point that they are not saying the Claimant is not disabled but needs further information before making a decision.[14]For the same reason, the claim of disability victimisation cannot succeed as it relies on the same detriments which are not capable of being detriments in law.[15]Accordingly, Claim 3 (2602094/2022) is struck out as having no reasonable prospect of success.[16]During the hearing, Mr Ibekwe rightly pointed out that the Respondent was not yet a party to Claim 3 as no response has been filed. I took this on board and made my decision within the rules on my own motion.
THE HEARING
[17]The Claimant did not comply with the Shore Unless Order. Mr. Brown accepts, as I have already observed, that there was material non-compliance. That was a sensible concession.[18]It is worth setting out, however, some of the reasons why that was a sensible concession. In purported compliance with the Shore Unless Order the Claimant set out 19 alleged disclosures. Many of them could not be understood. I list here a few examples:(a) Some alleged disclosures did not name the person to whom they had made and relied on references to HR, AET, London HR, “Various including Sir Herbert Leon Academy” and even simply “Letter”;(b) Some did not have a clear date and relied on “early 2021” and “Various”; and(c) A number of the parts completed in relation to “information disclosed” lacked any detail to understand what the information it was said disclosed was. A few examples are as follows: (i) My professionals and leadership background is in curriculum and data; (ii) Timetable concerns; (iii) Multiple examples; (iv) I expressed I would be happy to enter into mediation via Beverley Haywood (former representative) but this was ignored; (v) Intent to appeal made; (vi) Raised concerns with trustees; (vii) Probation outcome; (viii) Appeal of decision to terminate contract of employment; (ix) Appeal outcome; and (x) Job applications.[19]On 12th February 2024 the Respondent wrote to the Tribunal to say that the Claimant had not complied with the terms of the Shore Unless Order and asking if the claim was now struck out. They set out their view as to why it was said that the information provided by the Claimant was inadequate.[20]The Respondent’s correspondence was referred to Employment Judge M Butler who accepted the submission that there had been non-compliance and that he was striking out the claim. He referred to a Judgment following, Page 11 of 18 although of course that was not necessary because the effect of noncompliance was to dismiss the claim without the need for further Judgment or Order.[21]A Judgment was nevertheless signed by Employment Judge Adkinson on 26th February 2024 which was sent to the parties on 25th March 2024. That Judgment struck out the remaining parts of the claim and cancelled the three day hearing which had been due to commence on 22nd April 2024. The Claimant applied for Reconsideration of that Judgment. Employment Judge Adkinson supplied his provisional views and that he was considering revoking the Judgment (essentially because it was unnecessary given the automatic dismissal of the claim for non-compliance with an Unless Order) and that he would do so unless the Respondent objected. The Respondent did object but unfortunately that does not appear to have been referred to him. I have now directed that it should be done without delay and understand that he has now dealt with the application. The Claimant has also appealed that Judgment to the Employment Appeal Tribunal (“EAT”). Neither the Reconsideration nor Appeal is a matter for me.
THE LAW
[22]Where there has been non-compliance with an Unless Order the party in default may apply for relief from sanction. Rule 38(2) Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 deals with such applications and provides as follows: “A party whose claim or response has been dismissed, in whole or in part, as a result of such an order may apply to the Tribunal in writing, within 14 days of the date that the notice was sent, to have the order set aside on the basis that it is in the interests of justice to do so. Unless the application includes a request for a hearing, the Tribunal may determine it on the basis of written representations”.[23]Whilst it is important for Tribunals to enforce compliance with Unless Orders and should not set them aside too readily so as to undermine their importance, in certain circumstances the interests of justice and the overriding objective will best be served by granting relief to the party in default. Factors to be considered will generally include, but may not be limited to, the reason for the default, and in particular whether it was deliberate; the seriousness of the default; the prejudice to the other party; and whether a fair trial remains possible. No single factor is necessarily determinative, and each case will depend on its facts (see Thind v Salvesen Logistics Ltd EAT 0487/09).[24]Underhill P (as he then was) summarised the approach to be taken as to relief from sanction in Thind as follows: “The tribunal must decide whether it is right, in the interests of justice and the overriding objective, to grant relief to the party in default notwithstanding the breach of the unless order. That involves a broad assessment of what is in the interests of justice, and the factors which may be material to that assessment will vary considerably according to the circumstances of the case and cannot be neatly categorised. They will generally include, but may not be limited to, the reason for the default, and in particular whether it is deliberate; the Page 12 of 18 seriousness of the default; the prejudice to the other party; and whether a fair trial remains possible. The fact that an unless order has been made, which of course puts the party in question squarely on notice of the importance of complying with the order and the consequences if he does not do so, will always be an important consideration. Unless orders are an important part of the tribunal's procedural armoury (albeit one not to be used lightly), and they must be taken very seriously; their effectiveness will be undermined if tribunals are too ready to set them aside. But that is nevertheless no more than one consideration. No one factor is necessarily determinative of the course which the tribunal should take. Each case will depend on its own facts.” Underhill P also made clear: “All these cases turn on their own facts. I certainly would not wish it to be thought that it will be usual for relief to be granted from the effect of an unless order. Provided that the order itself has been appropriately made, there is an important interest in employment tribunals enforcing compliance, and it may well be just in such a case for a claim to be struck out even though a fair trial would remain possible.” THE CLAIMANT’S POSITION[25]I have recorded the submissions made on behalf of the Claimant – and also those on behalf of the Respondent – in relatively brief terms. They can be assured, however, that before taking my decision I have taken into account all that they have told me, the content of their written submissions and the relevant documents to which I have been taken in the hearing bundle.[26]Contrary to the position that the Claimant had adopted in her application for reconsideration in respect of the Judgment of Employment Judge Adkinson where she contended that she had at all times complied with the terms of the January 2024 Unless Order, Mr. Brown sensibly and candidly accepted that she had not. That was an appropriate concession to make as I shall come to in the context of the seriousness of the default.[27]The submissions on behalf of the Claimant can be summarised as follows:(a) That the Claimant was neurodiverse and had an inability to process information. Whilst Mr. Brown accepted that there was no medical evidence to support that he indicated that his belief was that it was this that had hindered the Claimant in complying with the Shore Unless Order;(b) That the Claimant was also a litigant in person and she may not have understood what was required of her. Mr. Brown pointed to the fact that the Orders of Employment Judge Shore had not set out exactly what a whistleblowing claim entailed and that he had seen other Orders which had set that out and which may have made it easier for the Claimant to comply if that information had ben included;(c) That the Claimant had attempted to comply with the Shore Unless Order and had not just ignored it even if she had not provided all of the required information; Page 13 of 18(d) That although it was not argued that the default by the Claimant was not serious, that had been remedied now because having taken instructions Mr. Brown had set out the sole protected disclosure which it was said was now relied upon;(e) That that alleged protected disclosure was discrete and now that it had been detailed the parties were virtually ready for trial and matters could be concluded without too much further delay; and(f) Now that the Claimant had legal representation there would not be any further issue as to compliance with Orders.[28]Mr. Brown therefore submitted that for all of those reasons the interests of justice merited the application being granted. THE RESPONDENT’S POSITION[29]Ms. Sheridan submitted to the contrary. Again, I have summarised the Respondent’s position but have taken everything that has been said into account. In brief, those submissions were:(a) That there was no medical evidence to demonstrate that the alleged disability relied upon, neurodiversity, had prevented the Claimant from complying with the Shore Unless Order;(b) That the Claimant had been given the opportunity to file such evidence and also a witness statement upon which she could have been cross examined but she had also failed to comply with that Order;(c) That there was a wholesale pattern of non-compliance with Orders made, including earlier Unless Orders, which needed to be taken into account;(d) That it could not now be said that the Claimant did not understand the requirements of the Shore Unless Order because it was clear from what was said by Employment Judge Shore in the Orders themselves that they had been explained to the Claimant and that she had specifically said that she understood what was required;(e) That the case was not trial ready as was suggested by Mr. Brown. The fact that the protected disclosure had now been identified was only one part of the picture and there would need to be further enquiry as to the alleged detriment etc;(f) That the Respondent ought not to be continued to incur additional costs which could best be used elsewhere to the benefit of the pupils that it served;(g) That the Respondent was prejudiced if relief from sanction was granted because a number of potential witnesses had left the Respondent, including Jonathan Harris - the person who it is said that the sole alleged protected disclosure had been made to;(h) That there was going to be a further delay in relisting the hearing which probably would not be for at least six months and the cogency of the evidence Page 14 of 18 was already being compromised;(i) That a fair hearing was no longer possible and certainly not within the previous hearing dates allocated which had been vacated by Employment Judge Adkinson because of the Claimant’s non-compliance; and(j) That in all events the Claimant was seeking to rely on an alleged disclosure made on 26th September 2020 and witnesses were going to be asked by the time of trial to give evidence about a disclosure and events of over four years ago. That also rendered a fair trial impossible.
CONCLUSIONS
[30]In dealing with the application for relief from sanction I have considered the guidance provided in Thind and the factors to be considered which will generally include, but may not necessarily be limited to, the reason for the default, and in particular whether it was deliberate; the seriousness of the default; the prejudice to the other party; and whether a fair trial remains possible.[31]All of those matters are inherently problematic for the Claimant although Mr. Brown has argued her case ably and as best as he possibly could have given the circumstances, background and extent of her default.[32]Many of the issues which I have considered today resonate with the position adopted by the Claimant at the hearing before Employment Judge Shore, but I have nevertheless considered the position afresh in respect of noncompliance with the Shore Unless Order.[33]The first issue relied on by Mr. Brown is that the Claimant is neurodiverse and that it may be that that condition had prevented her complying with the Shore Unless Order. Matters are put no higher than that because there is no evidence in support of that position.[34]It is in that regard somewhat surprising if the Claimant’s neurodiversity was said to be to blame for her failure to comply with the Shore Unless Orders that she has not produced medical evidence to that effect, not least in light of the fact that one reason that Employment Judge Shore refused relief from sanction in respect of the earlier Unless Order that I had made was that there was no cogent medical evidence. The Claimant cannot have failed in view of that to recognise that if she was relying on neurodiversity as being the reason for non-compliance, it would be very important to produce medical evidence to that effect. She was given the opportunity to do so by Employment Judge Shore in preparation for the Preliminary hearing today. She again failed to comply with those Orders.[35]As a result of that lack of supporting evidence, I cannot accept that the Claimant’s neurodiversity was the reason for non-compliance. Page 15 of 18[36]I turn then to the second position adopted as to the fact that there may have been a lack of knowledge about how to comply with the Shore Unless Order. I do not accept the submissions of Mr. Brown that the Claimant may not/did not understand the Shore Unless Order. It was made in very clear terms. Moreover, the Claimant has never said that she did not understand what was required until that has been suggested as a reason for non-compliance today. That echoes the position as it was before Employment Judge Shore in respect of non-compliance with my Unless Order where nothing about that was mentioned before submissions were made concerning relief from sanction.[37]Furthermore, the Shore Unless Order was explained to the Claimant very carefully. She was asked clearly if she understood them. She said that she did. If she had not understood I would have expected that she would have told Employment Judge Shore or written to the Tribunal subsequently to ask for clarification. She could also have sought legal advice as she did when instructing Mr. Brown for the appeal to the EAT. What is now said about a lack of understanding flies in the face of what the Claimant told Employment Judge Shore at the 15th January 2024 Preliminary hearing.[38]Whilst I have taken into account Mr. Brown’s submissions that the discussion within the case management summary did not set out further details about what was required in a whistleblowing claim, that would have had much more force if any of what the Claimant had been asked to do required her to engage with the legal basis of the claim – for example what part of Section 43B Employment Rights Act 1996 she was contending was engaged or how she was saying that she had a reasonable belief that the disclosure was made in the public interest - but that was not the case. All that she was being asked to do was set out the factual basis for the alleged disclosure(s). That information was well within the Claimant’s gift and she did not need a detailed explanation of the law to provide it.[39]The next issue relied on by Mr Brown is that the Claimant had not simply ignored the Shore Unless Order, she had attempted to comply with it. Whilst I accept that some information had been provided, it was wholly deficient with the simple things that the Shore Unless Order required the Claimant to do. The information that was provided made it almost impossible to determine what the vast majority of the alleged protected disclosures were said to be and took matters no further despite almost twelve months having elapsed since the Claim Form had been presented.[40]Whilst Mr. Brown accepts that the Claimant’s default has been serious, he points out that there has now been compliance and the alleged protected disclosure is a discrete matter. However, that does not outweigh the fact that there had continued to be non-compliance for a period of over seven months and no attempt was made to properly comply with the Shore Unless Order until the very morning of Preliminary the hearing to deal with relief from sanction. Moreover, as I shall come to below that was a disclosure which it is alleged was made some four years ago and to a person, Jonathan Harris, who has already left the employment of the Respondent.[41]Finally, Mr. Brown submits that the case is now trial ready and that the matter can be moved on quickly in the event that relief from sanction is granted. I am afraid that I cannot agree. There is much work yet to be done and as I Page 16 of 18 shall come to below I am far from convinced that there would not be further problems and default with other Orders made should the application be granted. Moreover, the hearing date has now been lost. The Tribunal is currently listing cases into mid 2026. It will be a year at the very least and perhaps even more before this case is going to be able to be relisted for a full hearing. That would mean that evidence was being given about an alleged protected disclosure made five years previously and about decisions taken at a similar period of time. The cogency of the evidence will almost inevitably be compromised.[42]I should say that I have taken into account Mr. Brown’s point that now that he is instructed that should assist in moving things forward and ensuring compliance with other Orders made. However, that needs to be balanced against the fact that Orders had been made for the Claimant to comply with to provide evidence for her application today. She also failed to comply with those Orders and nothing at all was done in preparation until the very morning of the Preliminary hearing. I understand from Mr. Brown that that was because of a misunderstanding as to who was going to be undertaking that work because he had only believed that he was instructed in respect of the appeal to the EAT and the Claimant had believed her instructions were in respect of al matters. Whatever the position, it is clear that even having representation has not seen the Claimant comply with Orders made and the ability of Mr. Brown to do so on her behalf is entirely dependant on clear instructions being given. I have little confidence that even with legal representation that there is not going to be a repetition of non-compliance. That is not least as the Claimant has failed to comply with Orders made previously, including Unless Orders, at a time when she had legal/professional representation. The best indicator of what is likely to come is what has gone before.[43]Taking all of those matters into account, I am not satisfied that there was any reason let alone a good reason for the default. The non-compliance, as Mr. Brown candidly accepted, was serious. The attempt to comply with the Shore Unless Order was wholly inadequate and that was still not remedied for seven months until the very day of the Preliminary hearing to deal with the Claimant’s application for relief from sanction. That was also compounded by the Claimant’s failure to comply with Orders made for this Preliminary hearing and all of the background of non-compliance with Orders and Unless Orders.[44]Those matters must all weigh against the granting of the Claimant’s application for relief from sanction.[45]I turn then to the issue of prejudice. Whilst I accept that there is prejudice to the Claimant in not granting the application, that is tempered by the fact that this situation is of her own making. The prejudice to the Respondent, however, is much greater. They have already spent a considerable amount in costs trying to understand the claims against them which have been advanced on many fronts under a number of different Claim Forms. Those claims have never really got off the starting blocks and if the application is granted further costs are going to be incurred which could best be spent on the benefit of the Respondent’s students. Page 17 of 18[46]Moreover, there is prejudice to the Respondent in terms of the cogency of the evidence and the ability to defend the claim given the departure of Mr. Harris and the passage of time from the alleged protected disclosure and the events in question. A fair hearing is therefore no longer possible.[47]In addition to the position of the Respondent, it is also necessary to consider the position of other parties to proceedings before the Tribunal. The Claimant has had a number of hearings and use of Judicial time in claims that have been either abandoned, struck out or dismissed for non-compliance with Unless Orders and none of which have ever made it out of the starting gates. Given the likelihood of the same problems manifesting themselves again if relief from sanction was granted, it is not in accordance with fairness or the interests of justice for further Judicial time to be taken up dealing with this claim which could be put to good use for parties who are complying with Orders made and are ready for their claims to be heard.[48]For all of those reasons and having balanced matters carefully, the scales tip squarely against granting the Claimant’s application for relief from sanction and it is accordingly refused because it is not in the interests of justice to do so.