Mr C J Nuttall v Technical Absorbents Ltd: 2601983/2016

EMPLOYMENT TRIBUNALS

Case No 2601983/2016

Between

Mr C J NuttallClaimant

Technical Absorbents LtdRespondent

Before

Employment Judge P Britton

In person for claimant

Ms L Gould (instructed by Counsel) for respondent

Date 17 July 2017

JUDGMENT

[1]I refuse the Respondent’s application to reconsider the judgment whereby I revoked the judgment dismissing this claim upon withdrawal. THE SECOND ISSUE 1. The claim is dismissed in its entirety by reason of the unreasonable conduct of the Claimant.

REASONS

Introduction

[1]I am dealing with today is the application of the Respondent that I should reconsider and thus overturn the judgment that I made on 28 March 2017. That Judgment, in what is an unusual circumstance, was one whereby I revoked the judgment that I had made on 1 March 2017 dismissing the claim upon withdrawal. The dismissal upon withdrawal was pursuant to Rule 52 of the Tribunal’s Rules of Procedure 2013. The decision to revoke that judgment was made by me pursuant to Rule 70 on my own initiative; my having determined that it was in the interests of justice that I do so. Page 1 of 11

[2]By its application of 31 March 2017, the Respondent effectively submits that that judgment was one which should not have been made for the reasons that it set out. The second limb of its application, excellently argued by Ms Gould to whom I am most grateful, is that even if the judgment was properly made, nevertheless it still means that the Claimant withdrew his claim, thus invoking the principle well-known and in particularly enunciated in Khan -v- Heyward & Middleton Primary Care Trust [2006] ECWA Civ 1087 that withdrawal nevertheless ends the proceeding before the tribunal. Thus, the only way forward would be that the Claimant would have to issue a new proceeding and of course inter alia would then have to face that it would be out of time and need to explain to the tribunal that it was not reasonably practicable under the usual test to have presented it before it was; and if he succeeded doubtless the Respondent might argue that to permit him to bring a second proceeding could be an abuse of process. But that is not relevant today.

[3]The point as far as I am concerned, although Ms Gould has tried to dissuade me, boils down to whether or not there was a clear unambiguous and unequivocal withdrawal by the Claimant of the proceeding. The circumstances in this case are unusual and against that background, I am going to set out the factual scenario insofar as it matters for the purposes of today’s adjudication.

[4]The Claimant presented his claim to the tribunal (which is one of unfair dismissal) on 25 November 2016. He was then legally represented. A Response (ET3) was submitted on 19 December 2016 by the Respondent’s solicitors providing a clear cut defence. The matter had already been listed for a hearing on 30 March at Lincoln and directions automatically provided. The Respondent submitted that 2 days should be given for the hearing of the matter. At that stage, there was not any application being made to strike out on the basis that the claim had no reasonable prospect of success or, in the alternative, that a deposit order should be made, it having only little reasonable prospect of success. I say no more on that topic at this stage.

Findings of fact

[5]By 9 January 2017 the Claimant no longer had his solicitors. He began to represent himself. By now the case had been relisted for 5 and 6 April 2017. There was then a period in which the Claimant wanted a whole list of witness orders and there was a dialogue about that. I do not need to deal with that at this stage.

[6]That brings in the fee remission system. In order to explain my findings on the topic, I need to just give a brief resume. Since the inception of the fees regime by the then Government which requires fees to be paid by claimants who wish to bring proceedings to employment tribunals, the system has meant that at Arnhem House in Leicester there is a fee remissions team. To turn it around another way, claimants who cannot afford to pay the fee (or all of it) can apply for remission. Bring into the equation also that many claims these days are on the online system and there is a central server, and the claims then, as I understand it, are routed initially via Arnhem House in order to process fees. Nevertheless, the department at Arnhem House is part (as I understand it) of the Employment Tribunals Service. It is known to me that from time to time there have been problems with the fee remission system and its efficiency; but I am a Judge and it is not for me to stray into matters of that nature, other than in terms of the evidence as I find it to be in this particular case and on this topic. Also the dealing with fee remissions can take time. That can obviously be difficult where claims need to be processed, listed etc.

[7]What happened here? The Claimant was able to afford the initial fee for Page 2 of 11 presenting his claim of £250 and he paid that on 25 November 2016. However, he then received in the usual way a notice from Arnhem House that he must pay £950, which is the hearing fee. He received that notice on 10 January 2017. Taking it short, at that stage he therefore invoked the fee remission process. That can be picked up from the bundle of documentation that is now before me at bundle page (Bp) 19. This meant that he needed to make application through the Arnhem House system via ETHelpwithfees@HMCT.gsi.gov.uk. He therefore made his application. That was circa 19 January, in order words as soon as he got the fee notice.

[8]What then happened is deeply unfortunate because to put it at its simplest, Arnhem House not only did not deal with the matter promptly, but refused to accept that the Claimant was in receipt of Job Seeker’s Allowance when in fact he was. What it means is that the system at ET Help with Fees, despite by then having received some 3 applications by the Claimant, nevertheless was demanding the fee of £950, and this was circa 9 February 2017, and on the basis that if it was not paid, then the claim would be struck out.

[9]The process by which claims are struck out under the fee regime system is not one which engages the judiciary. As I understand it, there is no appeal mechanism but again that is not a matter for me.

[10]Against that background, on 9 February 2017 the Claimant wrote in to the tribunal at Nottingham (ie Midlands (East)). This was at 17:08:17. This letter was not passed to a Judge. It is quite lengthy and suffice it to say that it is a mixture of different things. It starts off with: “I would like to inform you that you can close my case there will be no tribunal. I have never had or been involved in what can only be described as a farce!” He then went on to explain that he was justified in having brought his claim against the Respondent. How he had to spend out some £7,000 in legal fees but nevertheless he had wanted to persist with his claim as “I thought eventually the truth would come out at the hearing ...” But then what he went into was a clear cut complaint and attack on the tribunal system and fee regime in particular and to which I have now gone. Thus at paragraph 3: “Now your telling me that because I am out of work on JSA I still have to find another £950 pounds to have absolutely no say at the hearing and risk paying costs etc, please explain to me where that is anywhere fair except to the company with the money to throw at it. What on earth happened to a fair trial and the decision based on actual facts not the process? This whole procedure from the first has been completely one sided and gives the employee little or no chance in pursuing a company because the facts don’t matter what the hell happened to the system? I would like to make a formal complaint about the whole system so please give me a name and address because this system is so unfair even ACAS say so! My barrister told me it is clear the company witch hunted me out of the business unfairly but your not interested in that for gods sake that was my Page 3 of 11 living and my life and it doesn’t matter! How is it possible to form a decision on such a one-sided matter, I could never interview anyone I had no accompaniment in meetings, not allowed and now I’m told that you will take their side on the dismissal process not the events? I would not have been sacked if the company acted reasonable with a 20 year clean record that still doesn’t matter! The company have taken a year stalling me at every opportunity and lying it doesn’t matter! I’m absolutely at my whits end, the stress the company have put me and my family through you will never know, so this has to end. Please forward me the complaints process”

[11]So, this is a mix of things but with a core theme running through it in my judgement that this was all down to a fault with the system, which was denying him justice, ie in particular, the fees regime.

[12]That letter in the usual way should have been passed through to a Judge who would then evaluate it as to whether or not it was a clear unequivocal withdrawal. That would then bring in the jurisprudence and in particular I have shown the parties the most helpful judgment of recent times of the Honourable Mrs Justice Simler (President of the EAT) in Campbell -v-(1) OCS Group Ltd and

(2) Mr J Moffat [

UKEAT/0188/16/DA

]. In her judgment she cites in particular the judgment of the EAT and the dicta of the then President (Mr Justice Langstaff) in Ms F Segor -v- Goodrich Actuation Systems Ltd [2012

UKEAT/0145/11/DM

] as to which see Mrs Justice Simler’s reference at paragraph 16 onwards. A Judge would have to consider in effect whether this was an unequivocal withdrawal because “as a matter of principle we consider that a concessional withdrawal cannot properly be accepted as such unless it is clear, unequivocal and unambiguous”

[13]As it is and because this was seen I suspect by the Secretariat as being a complaint, it was dealt with by a senior member of the Secretariat, Ms J Skinner. Therefore, she replied to the Claimant on 17 February at 15:42 (Bp 26). “... With regards to your concerns about payment of the £950.00 hearing fee, as you are claiming JSA, before I mark your case as closed, I would like to refer you to the guidance regarding possible help with fees (and then she set that out and with the link to the website) ... You may not have to pay a fee, or you may get some money off.”

[14]She then endeavoured to explain to the Claimant that the tribunal would proceed fairly in any hearing and so she said: “... will listen to both sides of the case before making any decision. The Citizen’s Advice Bureau provide guidance in respect of this on their website at (she then gave the relevant address). I note also, your dis-satisfaction with the Employment Tribunal system as a whole, which as a national legal process is out of my hands locally. I have however recorded your comments below as a complaint; your feedback will be available to those at the centre of policy, and can be added to should you wish to provide further details of your dis-satisfaction. Page 4 of 11 I would be grateful if you would confirm to me whether you wish to continue your claim, by 4 pm on Tuesday 21st February 2017. Otherwise I will mark the matter as withdrawn.

[15]What it therefore means obviously is that the tribunal, via Ms Skinner, did not at that stage accept the withdrawal. It wanted confirmation of the same by the deadline set. What happened? None of which incidentally was known to this Judge when he came to make his judgment on 1 March because it was not on the file. Either it seems to me that it was not downloaded by the Secretariat or it was correspondence between the Claimant and the Arnhem House fees centre, none of which would be copied to the tribunal in usual course unless requested. Furthermore, when the Judge came to deal with the matter, he was not provided with a full fees printout history. This he was only able to see much later in the day.

[16]What did the Claimant do? This brings me to his email at Bp 26 sent on 17 February at 18:07:06. It is in fact to Midlands (East) which of course is the email address for not only Ms Skinner but of course myself and the other Judges based in the Midlands (East) region. That email was not sent to the fees regime team at Arnhem House. But it is a clear reply to Ms Skinner: “Hello, I have filled these forms in twice and got the same response which is. You cannot get fees reduced or help because you are not on income support you are on income allowance. I will fill it in once again and wait for the reply. Yours

[17]So what is he doing? He is confirming that he is not actually currently withdrawing He is going to have another try at the system. That is where the problem then develops because this he did; and so going again through the bundle, on 23 February (Bp 30) he was again endeavouring to get the remission out of ETHelpwithfees@HMCT.gsi.gov.uk. It is a full email; it is to be regretted that it appears to be that there was a major administrative error at Leicester because he sets out again how he is on Job Seekers Allowance despite them saying he is not. Inter alia he says: “can you not see that the stress everyone puts the employee under including yourself if ... the employer is laughing because they know they have won and its all because its down to money and not equality. This should be a hearing where I can attend and ask for witnesses to turn up as the company have and ask them questions freely and openly regarding the history and present behaviour of the company not just the process, this never happens in a court of law, why is it so set up to make the hearing so unfair? if I run out of time after filling these god damn forms in 5 times now close my case and send me the complaints procedure and the minister who is responsible for setting this up and I will fight for change because this needs to change if any employee is ever going to get to tribunal thats not Page 5 of 11 working”

[18]Again, that is not a withdrawal. It has in it a caveat which is “If I run out of time after filling these ... forms ... close my case” But he gets this time after a second stridently worded email on the same day at 20:51 the answer, which is that on 24 February (which is on the fees sheet which I have now seen) Arnhem House at long last made a decision and it partly remitted the fee and the Claimant paid the same on 28 February. None of this was on the file initially before me.

[19]The Secretariat, having nevertheless determined there was no reply to Ms Skinner’s email, issued notice on 1 March that the claim was now treated as withdrawn. The file was then passed to this Judge with the proforma dismissal judgment of course pursuant to the withdrawal rule, to which I have previously referred, and this Judge duly signed off a judgment dismissing the claim upon withdrawal. Of course, the Judge did not know either that there had been an email sent by the Claimant promptly in reply to Ms Skinner on 17 February or that there had been all this email traffic with Arnhem House. Had the Judge seen that material, then he would have concluded that this was not a withdrawal for the reasons I have now recited and thus he would never have issued the judgment dismissing this claim upon withdrawal. He would have objectively formed the view that there had in the circumstances been no withdrawal.

[20]As it is the Claimant wrote into the tribunal on 2 March 2017 (Bp 35). This time this got to the attention of EJ Heap who made some enquiries and hence we move forward to this Judge’s revocation judgment once he came back off leave and because pursuant to the jurisprudence this Judge is the one who would have to make a decision as to whether to reconsider, and in effect overturn, the dismissal judgment.

[21]The Claimant had written on 2 March: “Hello Could you please explain to me what on earth is going on because I said I would withdraw because of the fees and you emailed me back saying to claim for a reduction in fees I did this at least three times. Then you told me to pay £220.00 which I have sent in a cheque you will have it now and now you say the case is withdrawn what on earth has gone on? What happens now can the case be re-opened and go to court on 5th 6th April or have you given me false information. Yours confused by the whole process

Conclusion

[22]EJ Heap then set in chain where I come back in by her letter to the parties on 22 March 2017 (Bp 37). The important paragraph is as follows: “... Your correspondence has been referred to Employment Judge Heap. She has noted that the hearing fee in respect of this claim was paid before the decision was made to treat your claim as withdrawn and issue the dismissal judgment. That was not a matter that was known to Employment Judge Britton when he made his decision. In view of that, the matter will need to be referred to Employment Judge Britton to determine if he considers is appropriate to reconsider the dismissal Judgment ...” Page 6 of 11

[23]There was not at that stage, and I simply say this in passing, any representations made by the Respondent. That letter had been copied to it on 22 March. On his return from leave, this Judge revoked the judgment under Rule 73, it being in the interests of justice (for the reasons I hope I have now made plain) so to do.

[24]Having received my revocation judgment, on 31 March, the Respondent wrote in, submitting that I should not have made the revocation judgment as there had been a withdrawal, hence back to the Khan authority which has been referred to: hence today’s first adjudication.

Conclusion

[25]For the reasons I have given, there was no clear unequivocal withdrawal of this claim.

[26]The judgment upon withdrawal was erroneously made due to the Judge not being informed of the full picture.

[27]Thus when it came to light, this Judge acted correctly in accordance with the interests of justice in revoking the judgment dismissing the claim upon withdrawal.

[28]I therefore decline to reconsider my revocation judgment and I accordingly dismiss the Respondent’s application for the reasons I have now given.

[29]It means that the claim survives. THE SECOND ISSUE

[1]The first part of the second issue flows from an application which was made by the Respondent’s solicitors to the tribunal as long ago as 3 February 2017. It was unfortunately, in a case that in that sense now has an administratively catalogue of woe, not referred at the time to a Judge. It was renewed on 3 May 2017.

[2]The first fundamental which I am going to deal with is whether the claim should be struck out on the grounds of unreasonable conduct. In the application made on 3 February, the gravure related to a threatening letter which is before me at Bp1. Before I deal with the substance, I remind the parties of r37 (1) of the Tribunal’s 2013 Rules of Procedure: “37.—(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim ... on any of the following grounds— ... (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; Page 7 of 11

[3]I have had placed before me by Ms Gould in support of her written skeleton argument the core jurisprudence. Suffice it to say that I encapsulate it by applying the relevant dicta of Mr Justice Elias (as he then was) in Force One Utilities Ltd -v- Hatfield

[2009] IRLR 45

EAT. In that particular case he of course reaffirmed the preceding seminal authority on the topic: Blockbuster Entertainment Ltd -v- James

[2006] IRLR 630

CA. It is to the effect that a proceeding should not be struck out and a claimant not denied the justice seat unless in effect a three-stage process has been applied and the net result is nevertheless that a fair trial is no longer possible. “There are three questions for the tribunal to answer in an application under rule 18(7) (c) (now Rule 37(1) (b)):(i) whether the conduct related to the manner of the proceedings;

(ii) whether the conduct made it impossible to hold a fair trial; and

(iii) whether there is some response short of barring the wrongdoing party which would be proportionate. Questions (ii) and (iii) are interrelated. If steps short of a strike out can properly be considered a proportionate response, and that can only be because they are sufficient to render a fair trial possible. If such steps still render the trial unfair, they cannot proportionate to deal with the prejudice to the wronged party. A balancing exercise is not the correct metaphor in such a case. The intimidatory conduct of one party is specifically designed to put the other in fear of the consequences of continuing with the action. Where a tribunal concludes that the intimidated party will be unable to manage that fear and is likely to tailor the evidence to fit with the other party’s case, then the only proportionate response is to disallow the intimidating party from taking further part in the proceedings, at least with respect to liability. It is a draconian step to take and it plainly does affect the ability of the intimidating party to (prosecute) the case, but that is a consequence which that party has brought upon itself. It will still be necessary ...”

[4]So what are the facts as I find them to be? In that respect, I heard under oath first of all the alleged victim so to speak, Luke Knapton (LK), the HR Officer of the Respondent and then I have heard from the Claimant. The following are the facts as I find them to be. In doing so, I give observations on credibility. Findings of fact

[5]As I have already said, the Claimant was dismissed by reason of alleged gross misconduct on 16 June 2016. The basis for that dismissal starts with the Respondent having found that he bullied and harassed a junior employee, Brett Walton. In the context thereof, that inter alia he falsified Brett’s training records to try and get rid of him. As I have already said, the Claimant says that dismissal was unfair. And what is absolutely crucial from all the paperwork that I have read is that he holds an absolutely deep seated belief that the orchestrator of his misfortune was in fact LK, who he describes as a serial dismisser. LK has told me that not only has he never ever previously dismissed anyone but that in the context of what occurred, he only performed the role of an HR officer. Thus, advising when needed the investigating officer in terms of the disciplinary process, who was Mr Alistair Steele, the Ops Director. Then advising as to whether or not there should be a suspension but not making the decision himself. Not taking the decision to dismiss, which was more Mr Paul Bradley (Technical Director) and not being involved in the decision to dismiss the appeal, which was taken by Mr Parkington (the General Manager). Page 8 of 11

[6]In that sense, I would have a stark conflict. That might take me into issues of whether or not the case has any reasonable prospect of success but I do not need to go there. All that matters for my purposes is that the Claimant has, rightly or wrongly, an absolute obsession that LK is in fact the orchestrator of his dismissal.

[7]Why does that matter? Taking it forward, LK outside of work (and he strikes me as a somewhat shy and retiring man) lives a life of deliberate seclusion. He lives at the end of a cul-de-sac. He has no landline phone number. His mobile phone is ex directory. He does not broadcast his address at all at work and he keeps his life at home completely separate.

[8]Post the inception of the proceeding on 25 November 2016, I have no doubt, because I have no reason to believe that LK would make it up, that on the evening of 11 December 2016 somebody pushed through the letterbox of his home the document that is before me at Bp1. I am going to recite it in full for its force and effect: “Months you have had to get rid of your guilt and “tell the truth” it seems that you’re quite happy destroying ordinary nice people’s lives if you get the chance. An employee told me that you laughed when you sacked someone and that sickens me. Why would you want to sack people that have not done anything to you that’s bullying beyond anything imaginable. You have 3 days to settle this matter and either tell the manager what you did or if he knows which I suspect he does after 4 unfair dismissals. If matters do not change in the next 3 days and I can get on with my life I will destroy yours like you have others1. You are not going to keep doing what you like and have a laugh at the stake of people’s lives. If nothing happens in the next three days you will need to move again like you did in Scunthorpe if you get the chance that is.2 The principle is to be fair or play dirty you have been disgusting now you’re getting it back. The money means nothing to the company so 3 days from now.3 If I hear news that I won’t bother you that’s my word or the other two managers involved if I don’t hear then it’s time to get even4.”

[9]The first thing I would observe is with regards to paragraph 2 that this is a letter written in the first person and it refers to if he does not get what he wants and if he did “I can get on with my life”.

[10]Thus I observe that it is more probable than not that the person who would have written it or dictated its contents is the person affected. The person affected is clearly Mr Nuttall. I then observe that the letter is intimidating as is selfevident.

[11]When LK received that letter, inter alia he passed it through to the Respondent’s solicitors who in turn wrote to the Claimant’s then solicitors (BG 1 My emphasis 2 My emphasis 3 My emphasis 4 My emphasis Page 9 of 11 Solicitors) for an explanation. They replied (Bp 4) on 4 January: “”... Having taken our client’s instructions in relation to the same we have instructions that he was not responsible for posting this letter as alleged.

[12]What do I make of all this? First of all the provenance of the document. The Claimant tells me that he could not have posted it because he was at the material time taking part in a darts championship match. Furthermore, his partner can corroborate as she was the driver as he would be consuming alcohol whilst playing in the darts match. He says that he had no knowledge of this document and did not inspire anyone else to write it on his behalf.

[13]I do not believe him. I find it totally inconceivable that he was not responsible for the preparation of that document given its content; and therefore if he did not deliver it himself, he got someone else to do it for him. It took intelligence, in the military sense of that word, to track down where LK lived.

[14]What was the impact upon LK? LK contacted the police. The Claimant uses that to say “Oh well doesn’t it show they did not believe him”. I do not think that is at all what happened. I am concerned that the police took no action but that is not a matter for me. I have no doubt that LK was very concerned indeed and therefore he sent a copy of the document through to the police force. They did not come and see him; there were telephone conversations. I have to say as far as I am concerned, they failed in their duty to him, effectively telling him that if they went and saw Mr Nuttall it might further inflame the situation.

[15]Albeit the police are not here to defend themselves, I repeat that this letter and the posting of the same into LK’s letter box was a very unpleasant, clearly intimidating act in the context of litigation. I am concerned that the police force took no steps to take matters further. Good examples would have been forensic examination of Bp1 including cross comparison to the Claimant’s word processor; DNA sampling etc. I am not a forensic expert, but I do know that Bp2 in the bundle before me does appear to have the same type face. This is an exculpatory defence to matters clearly penned by Mr Nuttall. He says he only penned a handwritten version. But either way it was deployed by and emanated from him as the author. So, on the balance of probabilities, I would conclude that he was behind its composition and delivery to LK.

[16]So, going back to my approach to this matter in terms of the guidance of Mr Justice Elias, what have I so far got? I have a scenario which constitutes unreasonable conduct directly or indirectly orchestrated by Mr Nuttall.

[17]I therefore have to consider whether that conduct makes it now impossible to hold a fair trial. In so doing, I need to consider whether there is some response short of barring the wrongdoing party, which would be proportionate.

[18]That brings me back to LK. I repeat that I found him something of a shy and retiring man. I do not think he is nearly as resilient as Mr Nuttall makes out. I have to go on, as Mr Justice Elias makes plain, my own observations as an experienced Judge of LK as he is before me. He is in start contrast to the Claimant who is combatitive and from all the correspondence that I have seen in the bundle before me (and indeed the file) shoots from the hip and uses on a regular basis at best abrasive language. Page 10 of 11

[19]LK tells me that although he would want to give his evidence truthfully under oath, he feels restrained. He is now concerned about having to give that evidence in the presence of the Claimant. He is fearful as to repercussions if he does do so.

[20]Stopping there, can I deal with this matter in a way such as to say well we need not have LK give his evidence? That was my initial thought. That is to say that in terms of the usual approach to cases of unfair dismissal, the tribunal could simply hear from the investigating officer, Mr Steele, and then the disciplining and appeals officers.

[21]But, the Claimant is adamant that he wants LK under cross-examination because he was the orchestrator of the Claimant’s downfall. In that sense, justice would not be able to be done to the Claimant without LK giving his evidence. Then I am back to that I have no doubt whatsoever from having heard from and observed LK that he plainly is in real fear. Thus I have reached the conclusion that it would impact upon his ability to give evidence. Mr Nuttall says to me that he would not go after him, or get someone else to do it, because he has of recent time passed the necessary accreditation to be the licensee of a public house. He is now running such an establishment and he would not want to jeopardise it. The problem I have there as so eloquently put before me by Ms Gould is his complete denial of any involvement in this intimidation of LK. How can I be convinced that Mr Nuttall would not in some way get his own back on LK including covering his tracks by using someone else?

Conclusion

[22]What it means is that I have concluded in these circumstances, where this was clear-cut intimidation and which I have found to be the responsibility of Mr Nuttall, that in the context of this matter and on my assessment of LK, I am not satisfied that a fair trial is in fact possible. The Claimant is the author of his own misfortunate, thus his claim will be dismissed.