Ms L Kelly and Ms L Wellings v Sense, The National Deafblind and Rubella Association: 2601773/2020 and 2602010/2020
EMPLOYMENT TRIBUNALS
Case No 2601773/2020, 2602010/2020
Between
(1) Ms L Kelly (2) Ms L WellingsClaimantSense, The National Deafblind and Rubella Association PRELIMINARY HEARINGRespondent
Before
Employment Judge CampIn person for claimantMr J Morris (instructed by solicitor) for respondentDate 13 December 2021
JUDGMENT
[1](1) The claim of the second claimant, Ms Wellings, was presented outside of the time limits in sections 48(3) and 111(2) of the Employment Rights Act 1996 and therefore fails and is dismissed.(2) The respondent’s application to strike out part of the claim of the first claimant, Ms Kelly, pursuant to rule 37(1)(a) or for the Tribunal to make a deposit order under rule 39 is rejected. EMPLOYMENT JUDGE CAMP 20 November 2020 SENT TO THE PARTIES ON .................................................................................... .................................................................................... FOR THE TRIBUNAL OFFICE Note: Reasons for these decisions were given orally. Written reasons for paragraph (2) have been requested by the respondent and will be provided in due course. Written reasons for paragraph (1) will not be provided unless they are asked by a written request presented by any party within 14 days of the sending of the written record of the decision.[2]Case Numbers: 2601773/2020 v 1 EMPLOYMENT TRIBUNALS Claimants:(1) Ms L Kelly(2) Ms L Wellings Respondent: Sense, The National Deafblind and Rubella Association PRELIMINARY HEARING Heard at: Midlands (East) (in public; by CVP) On: 19 November 2020 Before:
REASONS
[1]This is the written version of the Reasons given for paragraph (2) of the Judgment of 20 November 2020 – “The respondent’s application to strike out part of the claim of the first claimant, Ms Kelly, pursuant to rule 37(1)(a) or for the Tribunal to make a deposit order under rule 39 is rejected” – written reasons for that paragraph having been requested by the respondent. By way of background, please see the “Case Summary” section of the written record of the hearing, in particular paragraphs 51 to 53.[2]I am now considering an aspect of a strike out/deposit order application which has been made on the respondent’s behalf by Mr Morris, solicitor for the respondent. It relates to Ms Kelly’s claim, that is claim 2601773/2020.[3]Ms Kelly’s claim is different from the claim I was dealing with earlier in this hearing, that of Ms Wellings, in that Ms Kelly’s claim, although it is also a whistleblowing claim, relates to things that happened when she was still employed. There is a list of alleged detriments that she is relying on, from page 220 of the file. The first detriment is dated 19 June 2019 and the last 17 February 2020.[4]When we discussed at the start of this part of the hearing how we were going to proceed with the respondent’s strike out / deposit order application, Mr Morris made a sensible suggestion that I adopted, which was that we should look first at the allegations around 17 February 2020. If it turned out that those allegations had no reasonable prospects of Case Numbers: 2601773/2020 v 2 success then time limits would very much be in issue, because Ms Kelly’s claim has only been presented within the primary time limit of 3 months plus early conciliation extension if those allegations remain part of it. If those allegations are not struck out then the argument would become over whether there was an “act extending over a period” or a “series of acts or failures” under section 48 of the Employment Rights Act 1996, and that is an argument it is unlikely to be possible for the Tribunal to resolve other than at a final hearing.[5]We have, then, been looking at what the claimant alleges about 17 February 2020. The claimant has provided further information about that in accordance with the Tribunal’s orders. I refer to page 226 of the file prepared by the respondent for this hearing, which contains a description of various things that happened.[6]In terms of the law, I take into account, in particular, paragraph 24, part of Lord Steyn’s speech, of the House of Lords’ decision in Anynanwu v Southbank Student Union [2001] ICR 391 and paragraphs 29 to 32 of the Court of Appeal’s decision in North Glamorgan NHS Trust v Ezcias [2007] EWCA Civ 330. When assessing whether a claim has “no reasonable prospects of success”, the test to be applied is whether there is no significant chance of the trial Tribunal, properly directing itself in law, deciding the claim in the claimant’s favour. Subject to one proviso, in applying this test I must assume that the facts are as alleged by the claimant. The one proviso or qualification is that I do not make that assumption in relation to any allegation of fact made by the claimant so implausible that I think there is no significant chance of any Tribunal accepting the allegation as true.[7]I note that striking out a tribunal claim, particularly one such as this one involving complaints of whistleblowing detriment and disputed allegations of fact, is an exceptional thing to do and that before I will do so the respondent has to cross a very high threshold indeed. Equally, however, the overriding objective is not served by permitting claims that are bound to fail to continue. Doing so benefits no one, least of all the claimant.[8]The law as to the meaning of “little reasonable prospects of success” in rule 39, which relates to deposit orders, is not as clear as perhaps it should be, but my understanding of the test I have to apply is that it is the same as that set out above in relation to “no reasonable prospects of success” but with the word “little” replacing the word “no” in the phrase “no significant chance”.[9]In either case, I have to take the claimant’s case at its reasonable highest. It is very rarely going to be possible for a Tribunal at a preliminary hearing to say that there is no or little reasonable chance of a different Tribunal at the final hearing deciding that the facts are not as alleged by the claimant. It is supposed to be summary determination. It is not supposed to be a mini trial. I am not hearing evidence about what happened. That would be a trial of a preliminary issue of fact and that is not what we are about today.[10]When I examine the claimant’s allegations, she is certainly not alleging something that is inherently ridiculous or fantastical, or something else in relation to which I could say, “That is never going to work”. It is also not one of those cases where there is a document Case Numbers: 2601773/2020 v 3 that the claimant is alleging says x, y and z that I can read and see that in fact it says a, b and c. It is not that kind of case.[11]The alleged detriments of 17 February 2020 relate to what was allegedly said at a meeting. It was not a minuted meeting and at the final hearing it is largely going to be the claimant’s word against that of Mr Shaw, who is the person present at the meeting on the respondent’s side and who is alleged to be responsible for subjecting the claimant to detriments. When it is one person’s word against another’s, and I am obliged to take the word of the claimant at its reasonable highest, and where the claimant is not alleging anything inherently very implausible, I cannot possibly be satisfied that there are no or little reasonable prospects of success of the Tribunal deciding at trial that what she says happened actually happened. It is unarguable that I could possibly do that; I would be making an error of law if I did so.[12]If there were some contemporaneous documentation the situation might be different. For example, if this meeting had been minuted and those minutes had been signed by the claimant as complete and accurate and flatly contradicted her allegations, that might be a case where one could say there was little reasonable prospects of success, because of the strength of the documentary evidence supporting the respondent. But there is nothing like that here.[13]The claimant’s main allegation is that her job was threatened at the meeting, because she had blown the whistle. She alleges she was told (using the words she uses in her further and better particulars), “He said my job was not safe or guaranteed and that I would have to be re-interviewed for a position”. On the face of it, that is an explicit threat. I appreciate that the respondent’s case will be that any remark along those lines was entirely reasonable in its context, that it was not said in a threatening way, and that there are various good reasons why what was said was said. That is all, though, a matter for trial. Mr Shaw’s alleged remark is manifestly capable of being a detriment. I cannot say there is no or little prospect of the Tribunal at the final hearing deciding that: the remark was not made; the remark was not a detriment; the remark was not made because the claimant blew the whistle.[14]There are other aspects to this complaint and to what allegedly happened at this meeting, but that is the key one. There is no proper basis to strike it out or make a deposit order in respect of it. If that complaint proceeds then potentially all of the other complaints are in time. I will now go on to deal with those other complaints, to the extent that Mr Morris wants me to. [In light of the above decision, the respondent did not proceed with any other strike out or deposit order or other application in relation to the claimant’s other complaints.] EMPLOYMENT JUDGE CAMP 03 January 2021 .................................................................................... Case Numbers: 2601773/2020 v 4 .................................................................................... FOR THE TRIBUNAL OFFICE Case Numbers: 2601773/2020 1 EMPLOYMENT TRIBUNALS Claimant: Ms L Kelly Respondent: Sense, The National Deafblind and Rubella Association RECONSIDSERATION JUDGMENT The respondent’s application for reconsideration is refused.[1]This decision has been made by the Employment Judge without a hearing, in accordance with rule 72(1).[2]There was a video (CVP) preliminary hearing on 19 November 2020 in the Midlands (East) region during which, amongst other things, I [Employment Judge Camp] gave a reasoned decision refusing the respondent’s application for a strike out or deposit order in relation to the claimant’s claim, which is a public interest disclosure / whistleblowing claim. By way of background, please see the “Case Summary” section of the written record of that hearing. The written judgment and that written record were both signed by me the following day.1 The respondent requested written reasons. These were sent out on 4 January 2021, and I refer to them. The respondent, through its solicitors, has applied for reconsideration of the decision not to make a deposit order by an email of 14 January 2021. The reconsideration application is contained in a 3 ½ page letter, to which I refer.[3]Legal experts hold different views about whether a decision to make or not to make a deposit order is, technically, a judgment or an order; and therefore about whether it is possible to apply for reconsideration of such a decision (because only judgments can be reconsidered). I take the view that such a decision is a judgment. It is, anyway, always possible to apply to set aside or vary a Tribunal order under rule 29. If a deposit order decision is in fact an order and not a judgment, this should be treated as my decision on an application to set aside or vary under that rule.[4]The respondent’s application for reconsideration is misconceived and there is no reasonable prospect of the original decision being varied or revoked. I can see no error of 1 In the ‘header’ of that written record and of the Judgment, I accidentally omitted to include the date the hearing took place: 19 November 2020. Case Numbers: 2601773/2020 2 law or other significant mistake in my decision; I would probably have been making an error of law were I to have acceded to the application for a deposit order.[5]I shall now deal with the respondent’s two main points.[6]The first is that (from towards the bottom of the second page of the respondent’s solicitors’ letter) there was “a failure to apply the ratio of the EAT’s decision in Van Rensburg – in considering an application for a deposit order, there can be (and in our submission should reasonably have been in this case) a consideration of the likelihood of the facts being established.”6.1 I am (and was at the time of the hearing) well aware that a Tribunal, when dealing with an application for strike out / deposit order against a claimant, can – and in many cases should – consider whether there are no or little reasonable prospects of the claimant proving the facts they rely on. Within my decision I said something along those lines and addressed the facts, as explained immediately below.6.2 Reading paragraphs 6 and 8 of the Reasons together, I said this: “The test to be applied is whether there is [little] significant chance of the trial Tribunal, properly directing itself in law, deciding the claim in the claimant’s favour. Subject to one proviso, in applying this test I must assume that the facts are as alleged by the claimant. The one proviso or qualification is that I do not make that assumption in relation to any allegation of fact made by the claimant so implausible that I think there is [little] significant chance of any Tribunal accepting the allegation as true.”6.3 I also said this (paragraphs 11 and 13 of the Reasons): “the claimant is not alleging anything inherently very implausible [and] I cannot possibly be satisfied that there are no or little reasonable prospects … of the Tribunal deciding at trial that what she says happened actually happened”; “I cannot say there is no or little prospect of the Tribunal at the final hearing deciding that: the remark [relied on as a detriment] was not made; the remark was not a detriment; the remark was not made because the claimant blew the whistle”.[7]The nub of the respondent’s argument seems to be this, from a paragraph near the top of the third page of the respondents’ solicitors’ letter: “In addressing ‘the likelihood of the facts being established’ then, the starting point would be that ‘one word against another’ cannot ever be better than a 50:50 chance. … A party to litigation who has a 50/50 chance cannot reasonably say they have ‘reasonable prospects of success’, they would on that basis have an equal ‘reasonable prospect of failure’. A party with a reasonable prospect of failure, must also have ‘little reasonable prospect of success’.”[8]That is wrong as a matter of law and illogical as a matter of reasoning.8.1 It does not follow from the fact that the evidence on a particular issue will consist of one person’s word against another’s that it will never be anything other than a 50/50 issue. The inherent probabilities of the situation, the surrounding circumstances, the individuals involved, and so on, may well make the likelihood of success higher or lower than 50 percent. Case Numbers: 2601773/2020 38.2 As a matter of language (and law) “reasonable prospect” does not mean ‘better than even’ and “little reasonable prospect of success” does not mean a 50/50 chance of success or worse. If it did, then: deposit orders could be made in every single case; in a true 50/50 case, deposit orders could be made against both sides – and, indeed, could (by the respondent’s logic) potentially have been made against the respondent in the present case.8.3 A case can simultaneously have both a reasonable prospect of success and a reasonable prospect of failure; many, perhaps most, cases do.8.4 When considering an application for a strike out or deposit order, the focus is on whether the claim has no prospect of success or little prospect of success. The word “reasonable” in rules 37(1)(a) and 39 is doing a similar job to the word “real” in rule 24.2 of the Civil Procedure Rules (concerning summary judgment in the County and High Court): to show that the Court / Tribunal must make a reasonable and realistic assessment of the prospect of success. The key question for the Tribunal under rule 39 is not “is there a reasonable chance of success?” but “is there little chance of success?”. 3 February 2021 EMPLOYMENT JUDGE CAMP SENT TO THE PARTIES ON 5 February 2021 .................................................................................. .................................................................................. FOR THE TRIBUNAL OFFICE Case Numbers: 2602010/2020 1 EMPLOYMENT TRIBUNALS Claimant: Ms L Wellings Respondent: Sense, The National Deafblind and Rubella Association RECONSIDERATION JUDGMENT The claimant’s application for reconsideration is refused.[1]This decision has been made without a hearing, in accordance with rule 72(1).[2]The application is refused because I [Employment Judge Camp] consider that there is no reasonable prospect of the original decision being varied or revoked.[3]There was a video (CVP) preliminary hearing on 19 November 2020 in the Midlands (East) region during which, amongst other things, I gave a reasoned decision dismissing the claimant’s – Ms Wellings’s – claim because of time limits. I refer to and repeat the written reasons for that decision, sent to the parties on 3 March 2021. They were not sent out until then because of factors explained within the reasons themselves.[4]On 16 March 2021, the claimant’s representative, Mr Micklewright (who also assisted her at the hearing), emailed the Tribunal a document that he described as an appeal but which asks me to reconsider my decision and which I am taking as a reconsideration application under rules 70 and 71. For his and for the claimant’s information, an appeal is a completely separate process and if the claimant wants to appeal, I suggest she considers carefully the document headed “EMPLOYMENT TRIBUNAL JUDGMENT” that was sent to her with the written version of the Judgment back in November 2020.[5]I refer to the claimant’s “appeal” document, which I shall call her “application”. In addition, I note the respondent’s solicitors’ letter dated 18 March 2021 responding to it.[6]In short, there is nothing in the claimant’s application that causes me to think that I made, or might have made, a mistake in my decision.[7]My decision was based on what the claimant and Mr Micklewright said during the hearing. The claimant gave evidence and was questioned extensively by me and the respondent’s Case Numbers: 2602010/2020 2 solicitors about her claim and the reasons why she presented both claims when she did and not before. She and Mr Micklewright were also given every opportunity to say anything and everything else they wanted to in opposition to the respondent’s application to have the claim dismissed on time limits grounds. The claimant’s application, I am afraid, appears to be an attempt to have a ‘second bite at the cherry’ – to put forward evidence and submissions that they wish had been put forward at the hearing, but which weren’t.[8]Addressing the specific things in the application:8.1 during the hearing, no one suggested that “confusion with two claims” was responsible for the second claim being late. Moreover, even if that suggestion had been made, it would not have helped the claimant given that any such confusion would not explain why a valid claim could not have been presented on time in March 2020, and given the facts and matters set out in paragraphs 18 and 19 of the Reasons;8.2 the suggestion that the claimant was “unaware that the time clock had re started” is inconsistent with the claimant’s own evidence at the hearing and my findings;8.3 during the hearing, no one suggested that confusion between Ms Wellings’s and Ms Kelly’s cases was the reason for the late submission of the second claim. Also, that would, once again, not explain why a valid claim could not have been presented in March 2020 – nor, indeed, why the claimant could not have submitted a valid claim when she submitted the first claim, which was rejected (by a Judge and not, as suggested, by Ms Skinner, who is a member of the Tribunal’s administrative staff); nor why she did not apply for reconsideration of that rejection quickly rather than launching a second claim many weeks later;8.4 during the hearing, no one suggested that the second claim was submitted late because the claimant was waiting for a response to a subject access request which was not responded to until 21 May 2020. It would, anyway, not explain its late submission, given that the claimant presented her first claim in April 2020 and that her second claim did not substantively have more information in it than the first (on the basis of what I was told at the hearing; see paragraph 19 of the reasons);8.5 the suggestion that the last detriment was after 24 November 2019 was not made during the hearing and no explanation is given in the application for why it wasn’t. The claimant explicitly confirmed in her evidence that she was not claiming about anything that happened after the end of her employment. What is suggested in the application is that further detriments – presumably detriments during employment and therefore on or before 24 November 2019 – were revealed in her personnel file that she received on 2 April 2019 and that the respondent’s response to the subject access request was a further detriment. If that was her case, she and Mr Micklewright were aware of it when the second claim was presented, on 18 June 2020 and they were certainly aware of it by the time of the hearing in November 2020; but it was not her case at the hearing. That they now, presumably in light of my decision, want to put forward something that they believe would have given them Case Numbers: 2602010/2020 3 a better outcome at the hearing had it been put forward then does not provide a valid basis for reconsideration. Moreover, the claim form does not contain any discernible complaint about the response to the subject access request; it wouldn’t do so given that it is largely identical to the claim form submitted in April 2020 before that response was received. The claimant would have to have successfully applied to amend in order for any such complaint to be before the Tribunal. No such applThe ication has been made, let alone a successful one.[9]In conclusion, I made a decision that it was open to me to make at the time on the basis of everything put before me by the claimant and on her behalf. Even with the full benefit of hindsight, I can see no error. Reconsideration cannot be necessary in the interests of justice in those circumstances.[10]Finally, I note Mr Micklewright stating in the application that he, “will prepare the documents to enable you to assist in your decision and will forward them to you as soon as they are ready”. A reconsideration application has to be made within 14 days of the Reasons being sent. In this instance, that time limit expired on 17 March 2021. I am preparing these reasons on 23 March 2021. Nothing further has been received from the claimant or Mr Micklewright. In accordance with the Rules, I have considered the application that was made on 16 March 2021 and I would also – in my discretion – have considered any additional documents that were submitted by 17 March 2021. (If they were documents that were not shown to me at the hearing, I might well have given them little or no weight, but I would at least have looked at them). I am not prepared to delay making my reconsideration decision any longer. Unfortunately for the claimant, I don’t think it would be appropriate to wait indefinitely for her representative to lodge additional evidence that should – if the claimant wanted me to take it into account when considering the application under rule 72(1) – have been put before the Tribunal at the hearing or, at the latest, within the time limit for applying for reconsideration. Employment Judge Camp 23 March 2021 Case No: 2601773/2020 2604405/2020 1 EMPLOYMENT TRIBUNALS Claimant: Ms L Kelly Respondent: Sense, the National Deaf, Blind and Rubella Association t/a Sense Heard at: Nottingham by CVP On: 6 – 13 December 2021 Before: Employment Judge Victoria Butler Ms C Hatcliff Ms K McLeod Representatives Claimant: Mr Micklewright, lay representative Respondent: Mr T Perry, Counsel Covid-19 statement: This was a remote hearing. The parties did not object to the case being heard remotely. The form of remote hearing was V – video. It was not practicable to hold a face-to-face hearing because of the Covid-19 pandemic.[1]The Claimant’s claim that she was subjected to detriments contrary to s.47B Employment Rights Act fails and is dismissed.[2]The Claimant’s claim that she was automatically unfairly dismissed contrary to s.103A Employment Rights Act 1996 fails and is dismissed.