G J Gibbon v BG Solicitors LLP: 2600652/2024 and 2601823/2024
EMPLOYMENT TRIBUNALS
Case No 2600652/2024, 2601823/2024
Between
G J GibbonClaimantBG Solicitors LLPRespondent
Before
Employment Judge McTigue sitting aloneMr Stuart Roberts (instructed by Counsel) for respondentDate 1 March 2025
JUDGMENT
[1]The claim numbered 2601823/2024 was not presented within the applicable time limit, but it is just and equitable to extend the time limit.[2]The claim numbered 2601823/2024 is however struck out under Employment Tribunal Rule 38(1)(a) because it has no reasonable prospect of success.
REASONS
[1]The claimant presented her first claim to the Tribunal on 26 April 2024. That first claim was numbered 2600652/2024 and case managed by my colleague, Employment Judge Hutchinson, on 15 August 2024. In that claim, the following complaints presently proceed: 1.1. Constructive unfair dismissal. 1.2. Unfavourable treatment because of pregnancy/maternity leave contrary to sections 18(2)(a), 18(3) and 18(4) of the Equality Act 2010. 1.3. Direct sex discrimination. 1.4. Victimisation. 1.5. Detriment under section 47(c) Employment Rights Act 1996 and Regulation 19 Maternity and Parental Leave Regulations 1999.[2]On 8 October 2024 the claimant presented her second claim to the Tribunal. That was numbered 2601823/2024. She had notified ACAS under the early conciliation procedure on 29 September 2024 and the early conciliation certificate was issued on 3 October 2024. In that claim, she solely pursues a complaint of victimisation.[3]There have already been two preliminary hearings in respect of this matter. The first before Employment Judge Hutchinson on 15 August 2024 and the second, before me, on 15 January 2025. Issues[4]Today’s hearing was listed to determine: 4.1. Should the claim numbered 2601823/2024 or any part of it be struck out because it has no reasonable prospect of success? 4.2. Does the claim numbered 2601823/2024 or any part of it have little reasonable prospect of success? If so, should the claimant be ordered to pay a deposit of between £1 and £1000 as a condition of continuing with it? 4.3. Can the claimant rely on the discussions that took place in a without prejudice meeting that took place on 14 November 2023 to support her claim(s) against the respondent?[5]These reasons relate to the Respondent’s application for a strike out or deposit order. My decision in relation to the without prejudice meeting appears in my record of the preliminary hearing which has been sent to the parties under separate cover. Procedure, documents and evidence heard[6]I had before me today the following documents: 6.1. A hard copy hearing bundle which ran to page F16. This ran to approximately 396 pages. 6.2. A hard copy skeleton arguments and list of issues bundle which ran to Page B319. This ran to approximately 335 pages. 6.3. A hard copy bundle containing the parties’ correspondence with the Solicitors Regulation Authority (“SRA”) which ran to page A57. This was approximately 57 pages. 6.4. Page A53 of the hard copy bundle containing the parties’ correspondence with the SRA in unredacted format.[7]The Respondent indicated that in relation to its application for a strike out or deposit order of the claim numbered 2601823/2024, there were 3 strands to its argument: 7.1. That the claim was out of time and it was not just and equitable to extend time. 7.2. That the Respondent’s report to the SRA was subject to absolute privilege. 7.3. The claim lacked merit.[8]I was conscious that the Claimant had not prepared a witness statement to address the issue of whether her claim was presented in time or not. To address this and remove any potential prejudice that might be suffered by her, I decided that the Claimant should be permitted to give oral evidence on the time point issue. Both parties agreed to that approach and the Claimant provided sworn evidence on that issue and was cross-examined by the Respondent’s representative.
Findings of Fact
[9]The only findings I make relate to whether the claim numbered 2601823/2024 (“the Second Claim”) was presented in time and, if not, would it be just and equitable to extend the time limit for presentation of that claim.[10]The Claimant’s evidence today was inconsistent and unreliable on the time point issue. She initially stated under examination in chief that she first became aware of the SRA report on 13 August 2024. Her evidence then changed and she said it was not until September 2024 that she read that email and so had details that the email related to allegations of misuse of a Deputyship Order.[11]In an attempt to clarify matters, I asked her when she saw the email from the SRA dated 13 August 2024. However the Claimant’s position appeared to then change again as she answered, “When I submitted my second claim”. The Claimant’s Second Claim was presented to the Tribunal on 8 October 2024[12]I find, on the balance of probabilities, that the Claimant was aware that the Respondent had reported her to the SRA on 13 August 2024. I make that finding based upon what clearly appears in at paragraph 2 of the Particulars of Complaint which was lodged when the Claimant presented her Second Claim. I do not find it credible that the Claimant, who is a practicing Solicitor, would fail to read and comprehend the contents of an email from a professional regulatory body for a somewhat lengthy period of time. She read that email on 13 August 2024. Indeed that it was she stated in her Particulars of Complaint which is document created much nearer the event in question and so a more reliable indicator of the event in question. Law Time Limits – Victimisation30. The Tribunal now turns its attention to the law relevant to the time limit issues for the victimisation complaint. Section 123 of the Equality Act 2010 (EA) provides: (1) Subject to sections 140A and 104B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 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.31. The 3-month period allowed by section 123(1)(a) is extended by the legislation governing the effect of Early Conciliation (see section 140B of EA Act 2010). The period from the day after “Day A” (the day early conciliation commences) until “Day B” (the day the Early Conciliation certificate is received or deemed to be received by the claimant) does not count towards the 3-month period, and the claimant always has at least one month after Day B to make a claim.32. There is no presumption that time will be extended. In respect of this, we note the following passages from the Court of Appeal judgment in the case of Robertson v Bexley Community Centre [2003] IRLR 434:- “If the claim is out of time there is no jurisdiction to consider it unless the tribunal considers it is just and equitable in the circumstances to do so.” (para 23) “…the time limits are exercised strictly in employment and industrial cases. When tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. Quite the reverse. A tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time, so the exercise of discretion is the exception rather than the rule.” (para 25). These comments have been supported in Department of Constitutional Affairs v Jones [2008] IRLR 128 EAT and Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 CA.33. The words “just and equitable” give the Tribunal a broad discretion in deciding whether to extend the time allowed for making a claim. A summary of the case law and was given by the EAT in Rathakrishnan v Pizza Express (Restaurants) Ltd [2016] ICR 283 per HHJ Peter Clark: “11. A useful starting point is the judgment of Smith J in British Coal Corpn v Keeble [1997] IRLR 336. That was a case concerned with the just and equitable extension of time question in the context of a sex discrimination claim. Smith J, sitting with members, in allowing the employers' appeal and remitting the just and equitable extension question to the employment tribunal, suggested that in exercising its discretion the tribunal might be assisted by the factors mentioned in section 33 of the Limitation Act 1980, the provision for extension of time in personal injury cases. The first of those factors, as Mr Peacock emphasised in the present appeal, is the length of and reasons for the delay in bringing that claim. 12. However, as the Court of Appeal made clear in Southwark London Borough Council v Afolabi [2003] ICR 800, in deciding the just and equitable extension question, a tribunal is not required to go through the matters listed in section 33(3) of the Limitation Act 1980, provided that no significant factor is omitted. That principle was more recently reinforced in a different context by the Court of Appeal in Neary v Governing Body of St Albans Girls' School [2010] ICR 473, where the leading judgment was given by Smith LJ. There, it was held that a line of appeal tribunal authority requiring a tribunal to consider the factors in the CPR, rule 3.9(1), as it then was, when deciding whether or not to grant relief from sanction following noncompliance with an unless order, was incorrect. Following Afolabi it is sufficient that all relevant factors are considered.[13]Section 33(3) of the 1980 Act does not in terms refer to the balance of prejudice between the parties in granting or refusing an extension of time. However, Smith J referred to the balance of prejudice in Keeble, para 8, to which Mr Peacock has referred me. That, it seems to me, is consistent with the approach of the Court of Appeal in the section 33 personal injury case of Dale v British Coal Corpn, where Stuart-Smith LJ opined that, although not mentioned in section 33(3), it is relevant to consider the plaintiff's (claimant's) prospect of success in the action and evidence necessary to establish or defend the claim in considering the balance of hardship. That passage neatly brings together the two factors which, Mr Dutton submits, were not, but ought to have been, considered by this tribunal in the proper exercise of its discretion: prejudice and merits. I shall return to those factors in due course.[14]What has emerged from the cases thus far reviewed, it seems to me, is that the exercise of this wide discretion (see Hutchison v Westward Television Ltd [1977] ICR 279) involves a multi-factoral approach. No single factor is determinative.” 39. The Court of Appeal considered the discretion afforded to Tribunals in Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640 at paragraphs 18 and 19, per Leggatt LJ: “18. First, it is plain from the language used ("such other period as the employment tribunal thinks just and equitable") that Parliament has chosen to give the employment tribunal the widest possible discretion. Unlike section 33 of the Limitation Act 1980, section 123(1) of the Equality Act does not specify any list of factors to which the tribunal is instructed to have regard, and it would be wrong in these circumstances to put a gloss on the words of the provision or to interpret it as if it contains such a list. Thus, although it has been suggested that it may be useful for a tribunal in exercising its discretion to consider the list of factors specified in section 33(3) of the Limitation Act 1980 (see British Coal Corporation v Keeble [1997] IRLR 336), the Court of Appeal has made it clear that the tribunal is not required to go through such a list, the only requirement being that it does not leave a significant factor out of account: see Southwark London Borough Council v Afolabi [2003] EWCA Civ 15; [2003] ICR 800, para 33. […][19]That said, factors which are almost always relevant to consider when exercising any discretion whether to extend time are:(a) the length of, and reasons for, the delay and(b) whether the delay has prejudiced the respondent (for example, by preventing or inhibiting it from investigating the claim while matters were fresh).” 40. Underhill LJ commented in Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23, that a rigid adherence to any checklist of factors (such as the list in section 33 of the Limitation Act 1980) can lead to a mechanistic approach to what is meant to be a very broad general discretion. He observed in paragraph 37: The best approach for a tribunal in considering the exercise of the “discretion under section 123(1)(b) is to assess all the factors in the particular case which it considers relevant to whether it is just and equitable to extend time including in particular…“The length of, and the reasons for, the delay”. 41. A lack of evidence from the Claimant about any delay is a relevant factor to consider in deciding whether or not to exercise discretion, but a not necessarily decisive one as seen in the case of Owen v Network Rail Infrastructure Ltd [2023] EAT 106. Strike Out 13. Under Rule 38(1) of the Employment Tribunal Procedure Rules 2024, a Tribunal may strike out all or part of a claim or response on various grounds including“(a)that it is scandalous or vexatious or has no reasonable prospect of success;” 14. In light of the severe consequences of strike out, it is considered a draconian step which should only be taken on the clearest grounds and as a matter of last resort. Its purpose is not to punish the conduct but rather to protect the other party from the consequences of the conduct (Bolch v Chipman [2004] IRLR 140, EAT). 15. Before making a strike out order, the tribunal must give the relevant party a reasonable opportunity to make representations, either in writing or, if requested by that party, at a hearing. 16. When considering whether to strike out a claim, the tribunal must first consider whether any of the grounds set out in rule 37(1) have been established; and then, having identified any established grounds, it must decide whether to exercise its discretion to order strike-out. This two-stage approach was confirmed in Hasan v Tesco Stores Ltd EAT 0098/16, EAT. Deposit Orders 17. Rule 40 of the Employment Tribunal Procedure Rules 2024 provides: “(1) Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim, response or reply has little reasonable prospect of success, it may make an order requiring a party (“the depositor”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument (“a deposit order”).” 18. In making a determination the Tribunal is required to make reasonable enquires into the Claimant’s ability to pay the deposit and have regard to that information when deciding the amount of deposit. 19. In Hemdan v Ishmail and anor 2017 ICR 486, EAT Mrs
Justice Simler stated that the purpose of a deposit order is to:
[20]“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, in our judgment, is legitimate, because claims or defences with little prospect cause 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 benefit.”[21]She also stated that the purpose is not to, “to make it difficult to access justice or to effect a strikeout through the back door.” Immunity from suit[22]It is established in law that there is immunity from suit, in circumstances where a party has made a complaint to the police of an offence or is to act as a witness in Court. In Taylor -v- Serious Fraud Office [1999] 2 AC 177, 207F, Lord Hoffmann stated: “The policy of the immunity is to enable people to speak freely without fear of being sued, whether successfully or not. If this object is to be achieved, the person in question must know at the time he speaks whether or not the immunity will attach. If it depends upon the contingencies of whether he will be called as a witness, the value of the immunity is destroyed. At the time of the investigation it is often unclear whether any crime has been committed at all. Persons assisting the police with their inquiries may not be able to give any admissible evidence; for example, their information may be hearsay, but nonetheless valuable for the purposes of the investigation. But the proper administration of justice requires that such people should have the same inducement to speak freely as those whose information subsequently forms the basis of evidence at a trial.”[23]In Gatley on Libel and Slander (13th edn) at para 14-017 it is stated that; “The doctrine that an absolute immunity exists in respect of statements made in the course of proceedings before a court of justice has been held to apply to statements made in the course of any proceedings before a tribunal (which word covers a commission or inquiry) recognised by law which, though not a court in the ordinary sense, exercises judicial functions, that is to say, acts in a manner similar to that in which a court of justice acts in respect of an inquiry before it.”[24]In Katherine White v Southampton University Hospitals NHS Trust and William Roche [2011] EWHC 825 (QB) Mr Justice Eady stated: “14. Usually nowadays tribunals to which such immunity attaches will be statutory, as is indeed the case with the GMC, but by no means always so. In Lincoln v Daniels, cited above, at p.254, Devlin LJ commented that there was nothing to show that the absolute privilege accorded to the court of inquiry in the Dawkins case depended entirely on the fact that the articles or regulations under which it was constituted had statutory force. As he pointed out, such privilege attaches to the regular courts of justice going back to mediaeval times, which were originally set up, not by Act of Parliament at all, but under the royal prerogative. What matters is simply that the court or tribunal in question is recognised by law – unlike, for example, domestic tribunals which derive their authority purely from agreement or consent. 15. The rationale for the distinction between domestic tribunals and those recognised by law was, again, explained in Lincoln v Daniels, at p.255, by Devlin LJ: “A private institution, such as a club, may set up a body to determine questions of admission and expulsion and it may be composed entirely of lawyers and may follow with exactitude the procedure of a court of law. But absolute privilege is granted only as a matter of public policy and must therefore on principle be confined to matters in which the public is interested and where therefore it is of importance that the whole truth should be elicited even at the risk that an injury inflicted maliciously may go unredressed. The public is not interested in the membership of a private club. The significance of … the … requirement … that the Court or tribunal should be recognised by law ... is that it shows that the public is interested in the matter to be determined by the court. Parliament would not, for example, regulate the disciplining of solicitors if there were not a public interest in the sort of men who practise as solicitors. The same consideration applies to the Bar.”[25]In White v Southampton University Hospitals NHS Trust and William Roche it was held that the General Medical Council is a quasi-judicial body and complainants enjoy absolute privilege and immunity from suit when raising concerns about a doctor’s clinical performance or character. Submissions[26]Both parties provided written skeleton arguments to the Tribunal which I incorporate by reference. These were supplemented by oral submissions. I have carefully considered both parties submissions before making my decision
Conclusion
[27]There were three strands to the Respondent’s application for a strike out or deposit order of the Second Claim. I shall now deal with each of those in turn. That the claim was out of time and it was not just and equitable to extend time.[28]The Respondent reported the Claimant to the SRA on 11 June 2024. The Claimant became aware that the Respondent had reported her to the SRA on 13 August 2024. The Claimant then notified ACAS under the early conciliation procedure on 29 September 2024 and the early conciliation certificate was issued on 3 October 2024. She presented her Second Claim to the Tribunal on 8 October 2022.[29]In her Second Claim the Claimant only relies on the single act of the Respondent making a report to the SRA in relation to a matter which she was a relevant fee earner. Her position is that was a detriment for the purposes of her victimisation complaint. That report to the SRA was made on 11 June 2024.[30]As the alleged detriment occurred on 11 June 2024, the three-month time limit for the presentation of the ET1 should runs from that point. The effect of that is that the claim should have been presented by no later than 12 September 2022. As it was presented on 8 October 2022, it is out time.[31]However, I conclude that it would be just and equitable to extend time in relation to the submission of the Second Claim. My reasons for doing so are as follows. Even though the alleged detriment occurred on 11 June 2024, the Claimant did not become aware of it until 13 August 2024. She then acted relatively promptly and submitted her claim on 8 October 2024. The delay here is relatively short and I am satisfied there is little prejudice to the Respondent.[32]The delay has not prejudiced the respondent by preventing or inhibiting it from investigating the claim. They have been able to present an ET3 and Grounds Of Resistance. If I were to not grant an extension, the prejudice suffered by the claimant would be greater than that to the respondent as she would lose the ability to pursue her claim. Having said that, I appreciate there is certain irony in that conclusion given the conclusion I reach below in relation to the matter of immunity from suit. That the Respondent’s report to the SRA was subject to absolute privilege.[33]I accept the Respondent’s submission that principles established in the case of Katherine White v Southampton University Hospitals NHS Trust and William Roche [2011] EWHC 825 (QB) apply equally to complaints made to the SRA.[34]In White, Mr Justice Eady, at paragraph 14, stated, “What matters is simply that the court or tribunal in question is recognised by law – unlike, for example, domestic tribunals which derive their authority purely from agreement or consent.” In my opinion, that is clearly the case with the SRA. It is an organisation recognised by law as the SRA’s investigatory and disciplinary powers and duties are primarily derived from the Solicitors Act 1974 and the Legal Services Act 2007. Those powers are then delegated to the SRA by the Law Society and are exercised independently by the SRA.[35]It is also clear to me that the principle must apply where a firm reports itself based on the actions of a one of its fee-earners. To borrow from Mr Justice Eady, “The public policy objective is to enable people to speak freely, without inhibition and without fear of being sued, whether making a complaint of criminal conduct to the police or drawing material to the attention of a professional body such as the GMC or the Law Society for the purpose of investigation. It is important that the person in question must be able to know at the time he makes the relevant communication whether or not the immunity will attach” (at paragraph 7 of White).[36]The Claimant submitted that the principle of immunity from suit and absolute privilege apply only to defamation cases. I disagree. Not only was the Claimant unable to supply authority to support that submission but the case of White makes clear that the objective of immunity from suit and absolute privilege is to enable people to speak freely, without inhibition and without being sued. That principle would be undermined if the principle were solely restricted to the tort of defamation.[37]The consequence of this is that Respondent’s report to the SRA of 11 June 2024 was the subject of immunity suit and absolute privilege. A complaint to the Employment Tribunal cannot be founded upon it.[38]The Respondent has therefore established that Rule 38(1)(a) is engaged. I now must determine whether I should exercise my discretion to strike out the claim. I am left with no choice here. The nature of the defence being advanced is effectively a “knockout blow” to the Second Claim. The Second Claim has no reasonable prospects of success and a fair trial is no longer possible.[39]Accordingly, the Second Claim should be struck out under Employment Tribunal Rule 38(1)(a) because it has no reasonable prospect of success. The claim lacked merit.[40]If I am wrong that the defence of absolute privilege and/or immunity from suit apply, I now go on to briefly consider the merits of the Second Claim.[41]This is a claim which, in my opinion, has little reasonable prospect of success. I say this because firms of Solicitors are under a duty to report potential misconduct to the SRA. Indeed this appeared to be a serious matter which involved the Claimant selling a property under the mistaken assumption that a Deputyship Order gave her the power to do so. It would however appear that Deputyship Order in question did not confer the right to sell a proper and so, it was quite legitimate for the Respondent to make a report to the SRA.[42]In addition, when the Respondent did make the initial report to the SRA on 11 June 2024, the Claimant was not specifically named in their letter. The letter, which appears in the bundle containing the parties’ correspondence with the SRA at pages A1 and A2 merely uses the term “FE”, i.e. Fee Earner, when referring to the Claimant. The identity of the Claimant did not become known to the SRA at a later stage in the process. It is for these reasons that, even if it were to proceed, I would conclude this claim has little reasonable prospect of success.[43]As I have struck out the claim I obviously do not make a Deposit Order. Had I made a Deposit Order I would have ordered the Claimant to pay £1,000 to advance this allegation. I took information regarding the Claimant’s means which, for the benefit of her privacy, I do not intend to repeat here. Needless to say, she has sufficient income and assets that would justify the imposition of a £1,000 Deposit Order. Approved by: