Ms K Edmond v Chief Constable of Nottinghamshire Police: 2601044/2016
EMPLOYMENT TRIBUNALS
Case No 2601044/2016
Between
Ms K EdmondClaimantChief Constable of Nottinghamshire PoliceRespondent
Before
Employment Judge Britton
Members
Mr G AustinMr C GoldsonMr N Smith (instructed by Counsel) for respondentDate 26 February 2018
JUDGMENT
[1]The claims of disability discrimination are dismissed in their entirety. The claim for unfair dismissal is also dismissed.[3]For the avoidance of doubt therefore all claims are hereby dismissed. JUDGMENT having been sent to the parties on 23 May 2017 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:[1]The claims of disability discrimination are dismissed in their entirety. The claim for unfair dismissal is also dismissed.[3]For the avoidance of doubt therefore all claims are hereby dismissed.
REASONS
[1]The claims as they have crystallised during this Hearing are as follows:-1.1 Unfavourable treatment pursuant to s15 of the Equality Act 2010 (the EqA) because of something arising in consequence of the Claimant’s disability in the period before and thence including the redundancy selection process ending in the Claimant’s dismissal on 20 November 2015 for redundancy. The disability relied upon for the EqA claims is essentially post traumatic stress disorder and gynaecoligal Page 1 of 9 abdominal problems which have necessitated major surgery.1.2 In the context of events, in particular in the period of her management by Sergeant Walker between January 2015 and essentially culminating on circa 20th April 2015, harassment pursuant to Section 26 of the EqA.1.3 Unfair dismissal pursuant to Section 98 of the Employment Rights Act 1996 (the ERA).[2]At the start of her inception of these proceedings, 14 April 2016, and as seen to be part of her case by Employment Judge Milgate at the first case management discussion on 19 August 2016, the claims were also seen to encompass possibly direct discrimination pursuant to Section 13, indirect discrimination pursuant to Section 19 and failure to make reasonable adjustment pursuant to Section 20-21; all as per the EqA. But in the run up to this Hearing, following a second case management discussion held by Employment Judge Hutchinson on 23 November 2016, the Claimant withdrew the direct discrimination claim. Then following a letter as directed by this presiding Judge dated 3 March 2017, as to his observations as to s19, the Claimant confirmed at the start of this hearing that she was not proceeding with the indirect claim. Then during the course of this Hearing it became untenable for her to continue to pursue the failure to make the reasonable adjustment claim. She took the hint so to speak and withdrew that claim. Thus left are the Section 15, and Section 26 EQA claims and the unfair dismissal claim. First observations including credibility[3]This case has in many ways seated itself essentially on issues of credibility. Before we go there let us explain in brief summary, which is not really disputed by the Claimant, that the redundancy process incepted by the Respondent police force because of the need to make substantial redundancies to its compliment of Police Community Support Officers (PCSO’s), and in the economic climate in which we live and Government requirements for savings, was impeccable. As a process it cannot be faulted. It goes beyond best practice. It incorporates a rational approach to the business case; the fullest possible consultation including with the trade unions; presentations to the affected staff; taking on board representations made as to tuning the process; a scoring approach which is capable of some degree of objective scrutiny; a peer review of the process by a calibration committee of people completely independent from the first line scorers; and thence an appeal process by a superintendent totally removed from the proceeding process. It follows that we can eliminate any issue about the process itself being unfair.[4]The core issue in this case was encapsulated by Ms Tolson in her concluding remarks, and it mirrors observations made from time to time by the Tribunal seeking clarification from the Claimant as to her case. Thus her case is that from the moment Temporary Sergeant Helen Walker came on the Claimant’s scene, starting in September 2014 and in particularly once she started to line manage her in January 2015 the Claimant alleges she was a marked woman. In summary Sergeant Walker from the off had taken a dislike to her and perceived her as “baggage” because of her disability and foreseeable future problems in relation to her health, and therefore was about engineering her removal. Thus she first set about managing her in a “nit picking way”; dealing with matters which did not merit the way in which they were dealt with; being oppressive in the management of her in those respects; making remarks in meetings which Page 2 of 9 constituted harassment and went to her disability; and conspiring, leading indeed the conspiracy, to undermine the integrity of the scoring process for the purposes of redundancy selection and with the intention from the off of getting the Claimant selected and dismissed. That is of course a very serious accusation.[5]Furthermore that Inspector Robert Wilson, from whom like Sgt Walker we heard sworn evidence1, became a party to this campaign encapsulated in his own scorings and thence his handling of the meeting on 24 July 2015 at which the Claimant was told their scorings. In that context he wrongfully refused to consider her protest including that she had been bullied by Sergeant Walker and instead in effect rubber stamped Sergeant Walker’s scorings and thus was a party to the decision to get rid of her.[6]As to the process thereafter starting with the calibration committee and thence moving through to the decision that she as she had failed to pass the scoring she should be redundant; thence her unsuccessful appeal against her dismissal determined by Superintendent Matthew McFarlane2 on 19 November she says it is all the fruit of a poisoned tree. Thus she doesn’t actually condemn such as Superintendant McFarlane or the calibration panel, it is simply that they were inadvertently tainted by the conspiracy and its impact on the scorings.[7]In the context of the unfolding events the Claimant raised a grievance3 on 8 September 2015, by then of course knowing that she was likely to be dismissed by reason of the scoring. That grievance, which primarily seats itself upon the complaints against Sergeant Walker, became the fundamental of her case not only for the internal grievance investigation but also for her claim to the Tribunal as it is in effect the particulars that she relies upon. As to the grievance investigation it was undertaken by Chief Inspector Andrew Goodall who gave evidence before us4 and whose report and appendices we had also before us. He in fact becomes part of the conspiracy on the basis of late accusations made by the Claimant before us relating to an undated handwritten list (Bp 851) she allegedly gave him providing names of persons who would support her and who he could thus investigate in relation to the voracity of her bullying and harassment complaints and their link in the chain of events. He wrongfully failed to do so. This was a late accusation. It never featured in her claim form, subsequent further and better particulars, the Scott Schedule, or her witness statement or in writing anywhere and in particular in relation to her appeal from Chief Inspector Goodall to Superintendant Ted Antill. Put simply we do not believe the Claimant on that core point. Chief Inspector Goodall, we conclude, was a witness of the utmost integrity. He had no axe to grind in this matter. He had little or no knowledge of the Claimant before being asked to investigate the grievance. That investigation in itself is a model of thoroughness. Inter alia he interviewed the Claimant’s “oppo” on the Park beat where she worked as a PCSO; he is Adam Wood. In virtually all respects, and certainly in no way that could support her accusation of bullying in that he never saw any of it and indeed found at all times Sergeant Walker to be the most supportive of managers, Adam Wood undermines her case fatally. We have no doubt that if Chief Inspector Goodall had received the Claimant’s handwritten list at Bp851, then as a conscientious, honest, senior police officer of many years experience he would have undertaken further investigation. As it is he had specifically asked the Claimant for any further names that might assist and had not been given any; he 1 For their evidence in chief see witness statements 2 and 3 in the combined witness statement bundle (WSb). 2 WSb no 9 3 Bp (bundle page) 771. 4 WSb7. Page 3 of 9 makes this plain in his witness statement. Why should he lie and put his career at risk? Where is the motive? We conclude as there is no such evidence and given our observations that the Claimant did not give him this list.[8]This therefore takes us on to the next issue which fatally goes to credibility. The Claimant when giving her sworn evidence5 maintained that at a consultation meeting held at the Riverside Police Station on 23 April 2015, with at least 20 persons present, she had raised the bullying issue and its impact on the selection process. She gave two accounts to us one before the morning break and the other when the hearing resumed. The first version was that during this briefing which we know was chaired by Superintendent Fretwell6 as head of the redundancy process, she raised albeit couched in a hypothetical, “if you were being line managed by your Sergeant who had not been long line managing you and that line manager was bullying you and in relation in particular to your health, how would that affect the consultation process?”[9]The version after the break excluded the word Sergeant and not being long time managed but otherwise was the same.[10]Again this was a new accusation and obviously one of huge significance. The Claimant has again offered no corroboration. The Claimant then became equivocal on this accusation. But we were not content that she could simply fudge the issue having made such a material accusation. Thus we required the attendance of Superintendent Fretwell having previously decided he would not be needed as otherwise his evidence was non controversial. Superintendent Fretwell has over 27 years distinguished service. He is well couched as a senior manager, and having had the training, on such as addressing issues of bullying and harassment. Surely if said, and bearing in mind this was not a large room and those assembled would have heard the hypothetical question, it would have raised alarm bells? He told us that he would have looked to investigate starting with the questioner by seeing her with an HR officer after the meeting. He has no recollection of any such question from the Claimant or anybody else for that matter. If it had had been asked he would have acted as we have said. So again we conclude that it was not said.[11]It follows that on two fundamentals we don’t believe the Claimant. It must inevitably have a knock on effect on findings on other conflicts. Put in summary the Claimant’s accusations against Sergeant Walker end up not holding water. The Sergeant Walker who we saw give evidence before us came across as far from a bully: caring and conscientious. As to her evidence in terms of her treatment of the Claimant she is corroborated by the grievance investigation; Inspector Wilson; and also by Inspector Claire Rukas7, as she now is, her predecessor in managing the Claimant. The weight of the evidence is that temporary Sergeant Walker was in fact a model of best practice. She had an HR background. She was caring albeit proactive. Of course she was. She was a new police sergeant wanting to prove her worth, wanting to ensure her team worked efficiently. That’s her job. But where is the evidence she was a bully with a dislike of the Claimant and out to her secure her downfall? None of the sworn evidence for the Respondent or the grievance investigation material, apart from the Claimant’s accusations, provides any corroboration: in fact the reverse. So what is at the root of this issue? It is as simple as this and as eloquently stated by Adam Walker in the interview that he gave to Chief Inspector Goodall at 5 Never previously referred to; for example in her pleadings or witness statement. 6 WSb4. 7 WSb5. Page 4 of 9 Bp957 in the bundle. It fits with the weight of the evidence including our observations of the Claimant and Sergeant Walker. Thus AW:- “…In his view HW is not vicious and could not see any reason why someone would not get on with her. AW added in his view that HW is the first sergeant that stood up to KE and KE has taken a dislike to this. He added HW had no hidden agenda or motive.”[12]What does this “taken a dislike” refer to? Put simply it’s this. On 20 February 2015 the Claimant was required to attend a UDT training course; but she was on an 11 hour shift, not due to end until 1900 hours. On an aside the reason why the Claimant had unusually 11 hour shifts is because the Respondent over the years had made accommodation for her in terms of her work life balance; not to do with her disabilities but because of her need to juggle her work life balance in terms of her 3 children, needing to get them to school and that her husband could not always assist as he had a shift pattern as well. So she got an unusual flexi working pattern. However nevertheless the quid pro quo is that she would do 11 hour shifts to thus get the compliment of hours over a 52 week cycle she needed. She didn’t always do 11 hour shifts of course. This day she was doing one. She never returned at the end of the course which was 15:45 hours. It also took place in Nottingham at the Central police station.[13]We have no doubt from the evidence that she had been told before she went by Sergeant Walker that once she had finished the course if she telephoned, a police constable would pick her up from the Central police station and bring her back to the Canning Circus station in the city of Nottingham where she worked in order that she could continue to work the remainder of her shift. As it is the Claimant got herself back to Canning Street, didn’t report in but instead collected her car and drove home.[14]The Claimant says “oh well. The trainer said we could all go home early”. That was checked by Sergeant Walker and is not true. The custom and practice essentially was that after the end of the training course those participating had an hour which they could use for their own training purposes so to speak in a way that however kept them fit, although how to do it and where was unspecified. That meant that in practice officers who were finishing at a normal shift time ie 5 pm could get home early. But no way was it intended to deal with a situation like the Claimant’s who was being paid to work to 19.00. Thus we are quite satisfied that on 27 February 2015 Sergeant Walker was entitled to tackle the Claimant on this issue having sent her an e-mail on the 20th when she couldn’t find her asking where she was. It does not assist the Claimant that on the evidence when she got back to Canning Circus under her own steam she didn’t tell anybody she was going home before she did. There is a notebook entry8 which the Claimant started to make on 27 February because by now she says she had raised her concerns about bullying and harassment with Unison, her trade union, and therefore was keeping a record. We note in this case that nobody from Unison has given evidence for the Claimant. Suffice it to say that we think that the note on 27 February is an amalgam of various conversations that had already taken place and a distortion of what took place on that day. We do not find that Sergeant Walker called the Claimant a “piss taker”. It is self evident from all we have heard about Sergeant Walker and read that it is not her style; and we similarly do not find that she said that the Claimant was “a danger to her colleagues”. What we do find is that by then Sergeant Walker had already learnt that the Claimant had an occupational health history when she had a handover briefing from Inspector Rukas who had been line managing the Claimant prior 8 Bp274-8. Page 5 of 9 thereto for about a year. She didn’t at that stage get the OH report. She understood that there were some restrictions on what the Claimant could do primarily in relation to hospital visits for what is known as “scene preservation”. She made it her business to talk to everyone of the staff she was now managing. Of course that is good practice. In the context of talking to the Claimant she learnt about the problems with her work life balance and that she had suffered from depression and Sergeant Walker emphasised because she herself has been a sufferer. There is some reference to dialogue about depression in these notes the Claimant relies upon. The trouble with the integrity of her notes is that when it comes to the all important allegations she alleges in relation to a further meeting on 2 April9 her notebook 308-309 has no such reference at all. Furthermore she has no book entry for the Riverside incident that we have referred to already. Why omit two such vital events when she is in effect asserting that by now she was religiously keeping notes to support her case of bullying and disability discrimination? It doesn’t make sense. Two further and final points perhaps on this theme. First over the training issue the Claimant could have been disciplined; she wasn’t, instead she was to forfeit the time not worked from accrued leave/TOIL. This is not unreasonable. Second the treatment of the Claimant in relation to her disability by Sergeant Walker cannot be faulted. The best evidence is that she decided quite properly when a problem arose about scene preservation and the Claimant not being able to visit a hospital, to get a clear report from occupational health as to what the Claimant should or should not be doing and in terms of reasonable adjustment. That report10 is dated 29 April 2015. It was shared with the Claimant. She didn’t disagree with the contents and she agreed to the e-mail that then went out which kept obviously to a limit what was being said to other senior officers for confidentiality reasons. But the e-mail made clear, penned by Sgnt Walker, that henceforth for medical reasons the Claimant would not be required to undertake “scene preservation” or “deal with incidents which involve a baby in hospital.” This is a supportive act whereby the reasonable adjustment was made by Sergeant Walker. How on earth can that fit with somebody who was about disability discriminating the Claimant? It simply doesn’t hold water. Finally on this topic the Claimant’s note of a 1:1 with Sergeant Walker on 16 March 2015 about the timing of her next operation is a distortion. Even on her own note, let alone cross referenced to Sergeant Walker’s own notes or her e-mail to HR11 it is contradictory. The reality is that dependent on the timing of the operation, Sergeant Walker was anxious to try and ensure the Claimant did not go down to half pay. This was a pastoral caring approach. The Claimant was not in any way pressurised as to the timing of her operation.[15]And the Claimant was late on several occasions: up to twenty minutes. Sergeant Walker was entitled to raise her concern on 16 March 2015. The lateness has nothing to do with disability; the Claimant was cutting too fine her travel time in from Long Eaton given the then disruption due to such as the tram works. And this was simply a cautionary discussion in the context of the 1:1; it was taken no further. What it therefore means as we move forward apace is that yet again her case doesn’t stand up to scrutiny. The redundancy selection[16]As to the redundancy selection process and the scoring of the Claimant, objectively there were shortcomings of the Claimant which the Respondent was 9 See item 13 Scott Schedule and references to “flip out” and “implicit invitation” to resign alleged to have been made by Sergeant Walker. 10 Bp467-8. 11 Bp290-1 and 310. Page 6 of 9 reasonably entitled to score her down on. We have now provided some examples. And there are others: Inspector Rukas has produced convincing evidence that the Claimant failed in terms of her duty to leave an intelligence trail for colleagues when she wasn’t at work on an issue to deal with students and noise in a particular house, query possibly drugs, which emerged shortly before she went on leave in August 2014 for her then operation for her gynae problems. It is essential that officers including PCSO’s leave, for instance on their Blackberry or otherwise in some form of written format, intelligence that can be picked up by other officers when they are not on duty. The failure by the Claimant meant a completely unnecessary meeting had to be held by Inspector Rukas with the liaison person from Nottingham Trent University and the resident who had made the initial complaint, to trouble shoot a potential impact on town and gown relations, in particularly in terms of neighbourhood policing and which was a primary part of the Claimant’s role. Nottingham has of course a very substantial student population.[17]The following year on 26 March an issue arose about the Claimant failing to deal properly in accordance with the protocol in relation to a possible domestic violence incident involving a gay couple in the Park area where she mainly worked. Of course these have to be taken just as seriously as heterosexual incidents. Put simply the intelligence trail in the documents before us, as explained by in particular Inspector Rukas and Sgnt Walker shows she failed to do the job properly.[18]That brings us to 25 April 2015. A very serious public order incident began to break out in the centre of Nottingham over the visit of the Eritrean Ambassador to a community center at which Eritreans were gathered. Because of the bitter divisions within Eritrea matters began to get out of hand with the Ambassador being besieged inside the building with his supporters by Eritrean dissidents outside it. The incident records12 before us are so clear. “All hands on deck” summarises the call for back up which went out to all police including PCSOs and thus the Claimant. The Claimant was only 2 streets or so away13, yet she tells us she wasn’t sufficiently familiar with the territory to be able to get to get to the scene in under at least 30 minutes. Furthermore when she got there she did not go and see Sergeant Hallsworth who was the officer on the scene of a senior rank, instead taking the word of colleague PCSO’s that it was alright for her to go off and do something else. At one stage she relied on a notebook entry that she had actually asked Sgnt Hallsworth for permission to leave and been granted it. Before us she rowed back on that and said that the entry to that effect was not correct. So the issue of whether or not Sergeant Hallsworth had told her she could go became a red herring. But not before Sgnt Hallsworth had been proofed14.Understandably he was astonished at her attitude: “It would not have crossed my mind that an Officer or PCSO would not attend the incident….If she had attended and I was aware of it; I would not have turned her away because I needed every available resource.”[20]Of course it begs the question as to whether she did attend. And if she did her approach was at best a gross error of judgement. 21 .It lends weight to the fact that although this Claimant may have been good at the social relations side of neighbourhood policing; well liked by the somewhat 12 Bp677 13 See map 676A: a 5 minute walk. 14 WSb85-94: he lists many shortcomings by the C. He deals with this issue at paras22-27.He gave sworn evidence before us. Page 7 of 9 wealthy residents of the quiet area known as the Park, when it came to being proactive in the hurly burly of policing in a busy city she fell short of what was required.[22]What does it mean? In this redundancy selection exercise such as this with the need is to keep the best of the PCSOs in a much pruned down complement, there will be casualties. The casualties will be those who albeit the Respondent might have before been able to continue to employ and perhaps turn a blind eye to some short comings in the good times, so to speak, cannot be carried in the lean.
Conclusion
[23]There are many other subsidiary issues such as the Claimant not wishing to give her driving licence details so as to use the Nottingham City Council support officer car, but we do need to go there. By focussing on these core issues we can sufficiently justify our conclusion.[24]There was no bulling and harassment let alone related to her disability.[25]The Claimant was not treated unfavourably because of something arising in consequence of her disability. Reasonable adjustments were made. As to the dismissal her disability was not engaged.[26]The reason for her dismissal was redundancy. The dismissal was fair: well within the range of reasonable responses.[27]For the avoidance of doubt there was no conspiracy in this matter and all the accusations against the police officers including in particular Sergeant Walker and Inspector Hill are not only roundly dismissed, but we wish those officers to leave this Tribunal knowing that there is no stain whatsoever on their professional integrity. COSTS 26. The Respondent reserved its position when judgment and reasons were given extempore at the hearing.
Introduction
[1]This is an application by the Respondent that the Claimant do pay its costs consequent upon the Claimant having lost her claim before the Tribunal in the 6 day hearing, if we include the reading in day, which took place as a live hearing between Monday 24 and Friday 28 April 2017. In relation to that judgment in due course at the request of the parties the written reasons (the Reasons) were promulgated on 15 July 2017. Prior thereto the Respondent had already made its application for costs on 15 May 2017, albeit it would need to wait on the Reasons in order to fully particularise the same. At that stage the Claimant put in her objections to a costs order being made on 25 May 2017; and of course we have had regard to those. Then on 25 July the Respondent re-affirmed its application: “…We apply for an order for costs on the grounds that the Claimant acted unreasonably and disruptively in her preparation for the hearing and during the hearing itself…” Given the issues and the amount claimed, accordingly the application was listed for a costs hearing today. Page 1 of 7[2]Before us Mr Smith, Counsel for the Respondent, has produced a written submission in support of the cost application which we gather was prepared by the then instructing solicitor. It is clear that the solicitor had intended that this be sent in attached to the schedule of costs. The latter had been ordered to be prepared by this presiding judge on 23 August 2017 and was duly provided on the 7th September and copied to the Claimant who then represented herself1. However the grounds were not attached due it seems to a change in fee earner. In any event they are now before us. Also learned counsel makes the additional submission that an additional ground to be relied upon is that the claim was misconceived in that it never had any reasonable prospect of success or certainly at the latest once the bundle prepared by the Respondents, and which was very comprehensive indeed, and its witness statements had been provided to the Claimant. As to this latter ground for reasons we shall come to it is very much wrapped up in the original grounds of the cost application. Thus the Claimant is not disadvantaged. Mr Mellish has been able to ably address the issues and put the Claimant’s objections to the application for costs.
The law
[3]Engaged is Rule 76 of the 2013 Tribunal Rules of Procedure:- “Rule 76(1):- A Tribunal may make a costs order… and shall consider whether to do so where it considers that:- a) A party or that party’s representative has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; (b) any claim …had no reasonable prospect of success.2[4]This of course is a two stage test. First in this particular case are any of the following established? Has she acted “vexatiously…disruptively or otherwise unreasonably” in the bringing of or the continued prosecution of this case (limb1) ? And if we need to go there, has she additionally or in the alternative pursued this case when if not initially then certainly as matters proceeded it had no reasonable prospect of success ( limb 2 )?[5]In approaching the matter we remind ourselves of the crucial dicta, of Mummery LJ in Yerrakalva v Barnsley Metropolitan Borough Council [2011] EWCA civ 1255 and as reaffirmed in Sud v London Borough of Ealing [2013] EWCA civ 949 and as per paragraph 70 per Fulford LJ in referring to Yerrakalva:3 : 1 Mr Mellis has recently been appointed by the Claimant we gather under the direct access scheme. He did not appear at the main hearing. 2 If we decide that the costs threshold under the two stage test has been met, finally we have a discretion pursuant to rule 84: “…in deciding whether to make a costs… order and if so in what amount, the Tribunal may have regard to the paying party’s ability to pay.” 3 This was under the precursor 2014 rules, but the wording is essentially the same. Page 2 of 7 “It was emphasised that the tribunal has a broad discretion and it should avoid adopting an over-analytical approach, for instance, by dissecting the case in detail or attempting to compartmentalise the relevant conduct under headings such as “nature”, “gravity”, and “effect”. The words of the rule should be followed and the tribunal needs “ to look a the whole picture of what happened in the case and ask itself whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what is unreasonable about it and what effects it had” (39-41).”[6]So what it means is this. First we have to make a decision on whether or not the threshold has been reached. If it has then, we shall consider whether to exercise our discretion to make an order for costs and in so doing may, and in this case have, considered means. Submissions; observations and core findings[7]Counsel for the Claimant has urged upon us a medical report from the Claimant’s GP dated 23 November 2017. Now of course he wasn’t present during the main hearing and in respect of which there are aspects of that report to which we shall come. But we will accept that throughout the period that the Claimant was litigating this matter she was under a raft of medication for her various conditions both physical and mental and in respect of which of course the Respondent had conceded by the time of the mainstream hearing that she was a disabled person for the purposes of the Equality Act 2010. Where Counsel starts from is to urge us to focus on “1.impression; 2. recollection; and 3. litigation.” What he is saying to us in a nutshell is you have to take this Claimant as she was. Summarised, she was incapable of being objective. She had blinkered herself so to speak from her impression of the material events into a convinced recollection of the same even though that recollection may have been wrong. And then with the stress of the litigation, she only became more convinced so to speak of the righteousness of her cause and was incapable of rationally standing back. Thus what is at the heart of what he urges upon us is that even if the threshold is objectively met, we should because of these impediments exercise our discretion by not awarding costs.[8]Conversely the Respondent’s argument is that this argument simply doesn’t hold water. The GP’s opinion in this medical report written nearly 7 months after the hearing is not the position as it was before the Tribunal. Two of the two core points relied on in it are incorrect: Thus at the first main paragraph on the second page of the report and having referred to the medication that the Claimant would have been on a the material time: “it is my personal opinion that this would have affected Karen’s ability to concentrate, and her presentation during the hearing, due to the well-known side effect of these medications”. Then as to the penultimate paragraph:“…Karen was unfortunate enough to be let down by her union representatives from Unison. who did not attend the hearing as they advised they would. This caused her significant extra stress, confusion with regard to the legal processes. and of course, had a significant impact on the hearing, as she was effectively unrepresented.”[9]As to the latter assertion, we have taken the parties through the correspondence trail on the file and which was in effect summarised in the Respondent’s written representations to which we have referred. Although there might from time to time have been some shortcomings in the discovery process by the Respondent, they are far outweighed by the disproportionate demands of Page 3 of 7 the Claimant further aggravated in terms of structuring her case and defining the issues by delaying on agreeing to complete a Scott Schedule; and that which eventually emerged couldn’t be agreed. The Claimant never in either of the two case management discussions held by Employment Judge Milgate, and then Employment Judge Hutchinson said she was unfit to participate or acquit herself in the case. Second there is no evidence that the Claimant was ever going to be represented by Unison and it was never said by her at any stage that she was. And she did not start her case before us by saying that she had been let down at the eleventh hour so to speak by Unison. Indeed she came with Ms Robinson on the first day for the purposes of her case and who did her best to assist the Claimant by way of representation. She came for day 2 and 3 with Mr Wingsworth and then on the last 2 days she had the excellent assistance of Ms Tolson to whom the Tribunal paid tribute as indeed did Mr Smith for the Respondent. And the next point to make is that the Claimant was cross examined over two and a half days. The conduct of the same was not oppressive and the Claimant was able to hold her own very well throughout and had an ability to recall in detail what she wanted to argue and demonstrated no signs of mental confusion at all. Insofar as she needed breaks there were no requests for extra breaks because of for instance mental stress and of course we otherwise did factor in breaks. None of her three lay representatives sought to submit that the Claimant was suffering during the hearing because she was mentally unable to cope or concentrate. And we have to state that we observed that throughout the Claimant was giving extensive instructions to whichever of the three was representing her at the time. So it follows that although we accept that the Claimant does have a disability and was under the medication as reported by the doctor, the evidence before us flies in the face of the opinion that he gives which would doubtless be to some extent based upon what the Claimant herself told him as is invariably the case: and a good example here is that he was told something that simply is not true and that relates to being let down at the last minute by Unison or being unable to cope with the proceedings.[10]The bottom line in this case despite the valiant efforts, and he is to be commended, of Counsel for the Claimant is that she chose to embark upon a case which from the first was based on the most serious of allegations to the effect that the Respondent’s personnel, in particular Sergeant Walker and Inspector Wilson, had embarked upon fabricating the evidence to justify her dismissal by reason of redundancy and because in particular Sergeant Walker was about managing her out of post because of her disability. As our Reasons painstakingly find this was wholly without foundation. Yet she chose to pursue it. And she could not have been clearer in the various statements that she made in the run up to trial, or in what she told EJ Milgate her case was about, or in the clarification of what her case was about on the last day of the proceeding as summarised by Ms Tolson:[11]Thus paragraph 4 of our Judgment: “The core issue in this case was encapsulated by Ms Tolson in her concluding remarks and it mirrors observations made from time to time by the Tribunal seeking clarification from the Claimant as to her case. Thus her case is that from the moment temporary Sergeant Helen Walker came on the Claimant’s scene starting in September 2014 and in particular once she started to line manage her in January 2015 the Claimant alleges she was a marked woman.” And then in terms of summarisation thus: Page 4 of 7 “The conspiracy to undermine the integrity of the scoring process for the purposes of redundancy selection and with the intention from the off of getting the Claimant selected and dismissed.” And we observed: “That is of course a very serious accusation.”[12]And it went further as this case proceeded before us. We do not need to spend much time on it at all. For instance, and it required Respondent witnesses to be called who could otherwise have been dispensed with, the Claimant when giving her sworn evidence4 made a wholly new accusation that during the briefing on the redundancy consultation process at the Riverside Police Station on 23 April 2015 she had raised inter alia relating to Sergeant Walker the bullying issue. She gave us two versions but the core point is that she had therefore raised to Superintendent Fretwell with some twenty persons present in essence that she was being bullied by her Line Manager ie Sergeant Walker and as to how that would therefore impact on the consultation process.” This last minute allegation meant that Superintendent Fretwell had to give evidence before us. As our findings made clear this was a false accusation by the Claimant. It simply did not happen. 13.A second late allegation and which again if true had very serious implications as to the integrity of key Respondent witnesses, relates to the handling of her grievance. This is taken up at paragraph 7 of our Judgement. The Claimant for the first time asserted that she gave to Chief Inspector Goodall a list (Bp851) of names of those who would corroborate her complaints and that he must have deliberately not interviewed them. It meant that we had to hear from Chief Inspector Goodall. We found that it did not happen. She did not put in a list of extra names which he then deliberately sought to exclude from interviewing.[14]Those are just but two of the core findings that we made in this case. And going back to other core issues we also found as is clear from our judgment that there was not a shred of evidence that supported the Claimant’s contention that Sergeant Walker had been out to get her: In fact the reverse.[15]Suffice to say that anybody who wishes to therefore read our judgment in full would realise that we have made a whole series of adverse findings against the Claimant which completely undermined her case. She chose to bring this case laced with career threatening allegations against the police officers in her sights and add to them in the way we have now referred to and when the allegations lacked substance. We don’t think the Claimant ever gave the slightest thought to the impact and distress this would have caused. Indeed the members of this tribunal in particular have asked the Judge to make plain that even today there is not the slightest sign that the Claimant regretted what she did. There is no apology before this Tribunal. There is no hint of one in the Claimant’s written submissions.[16]So in terms of the submissions of Mr Mellis and despite the GP report, the Claimant cannot hide behind her disability and say “oh I didn’t know what I was doing or I got myself in an obsessional hole whereby I couldn’t think through rationally”. The way in which the case was originally presented and thence particularised; thence how it was conducted including the copious instructions 4 See Judgement and Reasons commencing paragraph 8. Page 5 of 7 she was giving; her own evidence; the cross examination on her clear instructions of the Respondent witnesses; it all flies in the face of such an impediment on her ability to be responsible for her own actions. It is encapsulated within that on the last day of the proceeding when the Claimant was recalled in order that she could have an opportunity to deal with issues that had just emerged in the cross examining of Chief Inspector Goodall. The Claimant could not have been clearer when she was asked to clarify her position over Bp 851 and what Chief Inspector Goodall was saying about not having been given these extra names: “He is lying. I don’t agree the only person lying is me.” So the Claimant made plain in this case that key players in it were lying.
Conclusions
[17]What it means is looking at matters in the round ie the Yerrakalva approach and having identified the fundamentals so to speak as per the dicta, we have concluded that the threshold is reached. Put simply this case was pursued in circumstances where we agree with learned Counsel for the Respondent that it was(a) vexatious and(b) unreasonable. It follows that we don’t need to get into misconceived because it would only be stating the obvious.[18]It is true that the Claimant was not on notice that she was embarking at her peril as the litigation proceeded. But of course if the Respondent had made application for a de strike out or a deposit order, it is unlikely that it would have been granted given the case was so fact sensitive. There was no Calderbank letter, but given the Claimant’s mindset we doubt that it would have made any difference whatsoever. The fact is the Claimant chose to pursue this litigation which we have now found was unreasonable conduct.[19]We now come to stage 2 of the process. We have to now decide whether or not to exercise our discretion to make a costs order. Well we have discounted the mental health defence so to speak. Yes the Claimant is a disabled person and there is no doubt that she is now5 in a poorly state. But why should that prevent a costs order being made? The Respondent has incurred costs in a situation where the Tribunal has found that a Claimant put it to needless expense by behaving unreasonably. The point then becomes that this is a public body. As was put to us by Mr Smith the costs of this litigation at circa £45,000 is in fact the cost of 2 PCSO’s or perhaps a Police Constable with on costs. Thus we exercise our discretion so as to award costs.[20]As to what to award in terms of the amount of the costs, we have exercised our discretion so as to take into account the Claimant’s means. We are not going to award the whole amount sought. We consider that in this particular case this would be pointless as there aren’t the assets. Her husband, who is with her today by way of support, took no part in the litigation. He is the now the sole bread winner. By the same token we are not of course going to take any account of the Child Benefit for the 3 young children of this family[21]On the evidence we have today at present the Claimant is unlikely to work in the foreseeable future. But she is only 39 and say in another 10 years or even earlier when this litigation has finally removed itself from her mind, she might be able to undertake a sedentary occupation. Today she says well I couldn’t inter 5 Our emphasis. Page 6 of 7 alia because of my hip and leg problems and because I suffer from chronic fatigue syndrome. But there are many sedentary jobs in this region and in short travelling distance of Long Eaton where the Claimant lives, and the Claimant was able to sit throughout the proceedings before us and today and she didn’t need a special seat. It is of course only an observation.[22]Otherwise the family’s lifestyle is very modest, the motorcar is elderly with 254,000 miles on the clock and there is also a credit card debt. But as to the family home, albeit there is a second loan charged on it, the net equity is about £40,000. As the property is in joint names the Claimant’s share would be £20,000. We are going to reduce that a little to take account of such things as sales costs.[23]Therefore what we have decided to do is to not award the whole of the costs sought, which incidentally are in terms of the schedule reasonable against the Claimant. What we are going to do is to order that she must pay £17,500 of the Respondent’s costs. At present there is of course no prospect of it being repaid. Thus in probability the Respondent will seek a charging order, but this is not a matter for us. What is important is that via Counsel the Respondent has made clear that the Respondent will not seek to re-possess the family home6. Thus they can rest safe in their beds.