Ms J Fernandes v Independent Office for Police Conduct and Ms K Souter: 3201051/2023
EMPLOYMENT TRIBUNALS
Case No 3201051/2023
Between
Ms J FernandesClaimantIndependent Office for Police Conduct and Ms K SouterRespondent
Before
Employment Judge ReidIn person for claimantMs K Hosking (instructed by Counsel) for respondentDate 3 October 2023
JUDGMENT
The Claimant’s claim for unfair dismissal under s94 Employment Rights Act 1996 is dismissed because the Claimant has insufficient continuous employment to bring this claim. Employment Judge Reid Dated: 3 October 2023 - Case Number: 3201051/2023 1 of 8 EMPLOYMENT TRIBUNALS Claimant: Ms J Fernandes Respondents:(1) Independent Office for Police Conduct(2) Ms K Souter RECORD OF A PRELIMINARY HEARING Heard at: East London Hearing Centre On: 1 February 2024 Before: Employment Judge Reid Appearances For the claimant: in person – not represented For the respondent: Ms K Hosking, Counsel CASE MANAGEMENT ORDERS Next preliminary hearing (public)[1]The next preliminary hearing has been listed by agreement with the parties for 24 April 2024 at 10 am for one day via CVP (video). The claimant says that she can manage a video hearing and it will make it easier to accommodate the time she will need off work for that hearing. If however on consideration she changes her mind and prefers an in person hearing (as was held today) she should tell the Tribunal and the Respondent by 1 March 2024.[2]The next preliminary hearing is to deal with two matters(1) a decision on whether the claimant was a disabled person at the relevant time within s6 Equality Act 2010 for the claimed conditions of ADHD and/or autism and(2) the Respondent’s application for a strike out or a deposit order in relation to the time limit issue identified at para 3 of its response. See further below. The claimant is encouraged to obtain advice about her claim – she has already been provided with the free sources of advice information. If she has household insurance she should check if it can cover legal expenses.[3]The adjustments for this next hearing are as follows. The claimant needs breaks around every 45 minutes. She may need extra time to process information or answer a question and specific questions are easier for her to respond to. She also requests that the lighting be reduced – there is a function to have the room lights only partly on (or off). The claimant has had some support from an autism Case Number: 3201051/2023 2 of 8 charity and they may be able to advise her further on how to manage a hearing. If she is unable to obtain representation she should consider having a friend or relative with her for support. Amendment application by the claimant dated 8 December 2023[4]The claimant applied to amend her claim to allege that two incidents already claimed to amount to race discrimination also amounted to direct disability discrimination ( the allegation about witness statement training in June 2022 and the allegation about the Norfolk job in July 2022). The respondent agreed to these two amendments.[5]The claimant also applied to amend her claim to include two new additional claimed disabilities of(a) anxiety and(b) depression. I refused that application and gave oral reasons at the hearing. Any party can ask for those reasons to also be given in writing within 14 days. Although the claimant has not asked for them in writing I am in any event providing those reasons in writing (as an enclosure) because the claimant has some processing difficulties and may not have been able to take in the entirety of the oral reasons given on the day. Next preliminary hearing issues[6]I considered whether it was appropriate to order a separate preliminary hearing on the disability issue as requested by the respondent. Although the disability issue is not determinative of all issues in the claim (in that there are other claims of race discrimination, victimisation and harassment on the ground of race which will proceed in any event), having a separate hearing on the disability issue might mean a significant reduction in the length of the final hearing if that particular claim did not progress, managing a saving in time and costs for both sides. In relation to disability, apart from her disability impact statement, the claimant relies on only one document namely a 7 page pre-assessment dated February 2022 by an independent ASD practitioner (not a doctor or a psychologist). The claimant has redacted certain parts of this document which she says relates to personal matters she does not want to disclose. I discussed with her whether she would agree to provide the complete document given the burden of proof to show disability is on her but she confirmed that she is only prepared to provide this redacted version and that this is the only document she relies on, in addition to her disability impact statement. She says her GP records will only record her telling her GP that she had been told she had ADHD and autism and will not show her asking specifically for advice or help with these particular conditions so there is nothing material in her GP records about these two conditions.[7]The respondent also said it wished to make an application for a strike out or deposit order on the time limit point identified in para 3 of its response. I identified that the high threshold for a strike out would make this difficult because of the usual need for the Tribunal to hear the full case before deciding whether there had been a continuing act, meaning it was hard to say at this stage it was obviously weak. The respondent’s case is that there is a distinct gap of a period of sick leave during the employment after which the claimant had a different manager, meaning that the claim that there was a continuing act is weak. In the alternative the Case Number: 3201051/2023 3 of 8 respondent would seek a deposit order. This is an order that a party pay a deposit of up to £1000 to pursue a particular claim or argument. The respondent can decide the application it wants to make in the light of today’s hearing. Given there would be time to deal with any such application at the next preliminary hearing any application can also be accommodated that day. The respondent is to make any such application by 1 March 2024 and the claimant is to respond by 15 March 2024. If the respondent has made an application for a deposit order the claimant should provide information about her ability to pay a deposit order such as details of her current earnings from her new job, her bills/ financial commitments (rent/mortgage, bills etc) and bank statement/payslips.[8]Any changes to the list of issues (see below) can be identified as necessary depending on the outcome of the next preliminary hearing. The length of the final hearing can also be revisited if appropriate.[9]The respondent will prepare a bundle for the next preliminary hearing and send it to the claimant by 10 April 2024. Draft list of issues[10]This was largely finalised today and small amendments made to paras 13, 14, 15, 19, 21-23. The Respondent will send to the claimant by 15 February 2024 a list of the 8 individuals in her training cohort for para 13 so that she can in identify the two comparators she says are relevant by 22 February 2024. The respondent will send a final version of the agreed list to the Tribunal by 8 March 2024 (marked as finalised at this hearing so easy to identify). Because the changes are minor the list does not need to be referred to me for checking unless the parties run into difficulties. Amended response[11]The respondent is to provide an amended response to the Tribunal copied to the claimant by 8 March 2024. Second respondent[12]The first respondent raised the issue of the inclusion of the second respondent as a party given that it does not seek to rely on the defence in s109(4) Equality Act 2010. Because she is not legally represented I explained this issue to the claimant: where an employer says it will accept legal liability for anything wrong done by an individual respondent, this means that they will ‘pick up the bill’ if that claimant wins their claim; a claimant is still however entitled to bring their claim also against the individual respondent as a separate party. The claimant decided that she wished to continue her claim also against the second respondent. Judicial mediation[13]The respondent is not interested in judicial mediation. Case Number: 3201051/2023 4 of 8 Dispute Resolution Appointments[14]Following exchange of witness statements the Regional Employment Judge, or a designated employment judge, will consider whether to list this case for dispute resolution appointment (DRA). If so, a notice of DRA Preliminary hearing and relevant orders for the DRA will be issued. Further details can be found at paragraphs 36 – 46 and Appendix 3 of the Presidential Guidance on ADR https://www.judiciary.uk/wp-content/uploads/2013/08/PG-ADR-July-2023- final1.pdf Schedule of Loss[15]The claimant must by 1 March 2024 send to the respondent and the Tribunal a document setting out how much compensation for lost earnings or other losses she is claiming and how the amount has been calculated. This is called a Schedule of Loss. The claimant has already done one of these for her previous claim against her previous employer so can use the same basic format. The claimant should read guidance note 6/Remedy of the Presidential Guidance (Case Management) at https://www.judiciary.uk/wp-content/uploads/2013/08/presidential-guidancegeneral-case-management-20180122.pdf.[16]In brief, the Schedule of Loss should set out:• The number of weeks the claimant was out of work giving the dates the period covers (she says she got a new job at a slightly higher rate from November 2023)• The net loss of earnings in those weeks• What she lost in pension contributions the respondent would otherwise have made (she can get the amount from her payslips)• The amount of Universal Credit she received in the period she was out of work (number of months and monthly amount)• What she claims as injury to feelings (she has said so far this is £30,000). Documents[17]By 15 February 2024 the respondent is to send the claimant a copy of her payslips to assist her in preparing her schedule of loss.[18]By 7 June 2024 the respondent must send the claimant copies of all documents relevant to the issues.[19]By 7 June 2024 the claimant must send the respondent copies of any other documents relevant to those issues. This includes documents relevant to financial losses and injury to feelings. As discussed with the claimant at this hearing this includes(a) the GP certificates signing her off from around March/April 2023 till she started her new job (her primary case being that she was unable to fully look for work in that period) and(b) documents about the limited number of jobs she was able to apply for when she was signed off – this should include eg applications made and registration with agencies/recruiters. As discussed, it may help to Case Number: 3201051/2023 5 of 8 compile a list of the jobs she applied for in chronological order to provide with the supporting documents.[20]Documents includes recordings, emails, text messages, social media and other electronic information. You must send all relevant documents you have in your possession or control even if they do not support your case. A document is in your control if you could reasonably be expected to obtain a copy by asking somebody else for it. File of documents[21]The claimant and the respondent must agree which documents are going to be used at the hearing. The claimant must tell the respondent’s solicitors the documents she wants included by 28 June 2024.[22]The respondent must prepare a file of those documents with an index and page numbers. They must send an electronic copy (the claimant’s format preference) to the claimant by 5 July 2024.[23]The file should contain:23.1 The claim and response forms, any changes or additions to them, and any relevant tribunal orders. Put these at the front of the file.23.2 Other documents or parts of documents that are going to be used at the hearing. Put these in date order.[24]The claimant and the respondent must both bring a copy of the file to the hearing for their own use.[25]The respondent must bring four more paper copies of the file to the hearing for the Tribunal to use by 9.30 am on the first morning. An electronic copy should also be available. Witness statements[26]The claimant and the respondent must prepare witness statements for use at the hearing. Everybody who is going to be a witness at the hearing, including the claimant, needs a witness statement. The claimant said she might need to apply for a witness order – the Presidential Guidance on Case Management (guidance note 3) contains information about witness orders.[27]A witness statement is a document containing everything relevant the witness can tell the Tribunal. Witnesses will not be allowed to add to their statements unless the Tribunal agrees.[28]Witness statements should be typed if possible. They must have paragraph numbers and page numbers. They must set out events, usually in the order they happened. They must also include any evidence about financial losses and any Case Number: 3201051/2023 6 of 8 other remedy the claimant is asking for. If the witness statement refers to a document in the file it should give the page number.[29]At the hearing, the Tribunal will read the witness statements. Witnesses may be asked questions about their statements by the other side and the Tribunal.[30]The claimant and the respondent must send each other copies of all their witness statements by 13 September 2024.[31]The claimant and the respondent must both bring copies of all the witness statements to the hearing for their own use.[32]The respondent must bring four more copies of the witness statements to the hearing for the Tribunal to use by 9.30 am on the first morning. Electronic copies should also be available. Checklist Date Order ✓ 15 February 2024 Respondent to provide payslips and the names of those in the Claimant’s training cohort Respondent 1 March 2024 Claimant 15 March 2024 Application to strike out/deposit order and Claimant response 1 March 2024 Schedule of Loss 8 March 2023 Amended response and updated list of issues 7 June 2024 Respondent’s documents 7 June 2024 Claimant’s documents 28 June 2024/5 July 2024 File 13 September 2024 Witness statements Hearing preparation[33]By 25 February 2025, the claimant and the respondent must both write to the Tribunal to confirm that they are ready for the hearing or, if not, to explain why.[34]The respondent must prepare and try to agree:34.1 a neutral chronology, listing the key events and when they happened. The chronology should refer to page numbers from the file; Case Number: 3201051/2023 7 of 834.2 a list of people involved in key events and their job titles;[35]By 1 March 2025, the respondent must send copies to the claimant.[36]The respondent must bring three copies to the hearing for the Tribunal to use. Variation of dates[37]The parties may agree to vary a date in any of these orders by up to 14 days without the Tribunal’s permission, but not if this would affect the hearing date. About these orders[38]These orders were made and explained to the parties at this preliminary hearing. They must be complied with even if this written record of the hearing arrives after the date given in an order for doing something.[39]If any of these orders is not complied with, the Tribunal may:(a) waive or vary the requirement;(b) strike out the claim or the response;(c) bar or restrict participation in the proceedings; and/or(d) award costs in accordance with the Employment Tribunal Rules.[40]Anyone affected by any of these orders may apply for it to be varied, suspended or set aside. Writing to the Tribunal[41]Whenever they write to the Tribunal, the claimant and the respondent must copy their correspondence to each other. Useful information[42]All judgments (apart from judgments under Rule 52) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employmenttribunal-decisions shortly after a copy has been sent to the claimants and respondents.[43]There is information about Employment Tribunal procedures, including case management and preparation, compensation for injury to feelings, and pension loss, here: https://www.judiciary.uk/publications/employment-rules-and-legislation-practicedirections/[44]The Employment Tribunals Rules of Procedure are here: https://www.gov.uk/government/publications/employment-tribunal-procedurerules Case Number: 3201051/2023 8 of 8[45]You can appeal to the Employment Appeal Tribunal if you think a legal mistake was made in an Employment Tribunal decision. There is more information here: https://www.gov.uk/appeal-employment-appeal-tribunal _________________________ Employment Judge Reid Dated: 5 February 2024 Encl: Written Reasons dated 1 February 2024 (Claimant’s amendment application) Case Number: 3201051/2023 1 EMPLOYMENT TRIBUNALS Claimant: Ms J Fernandes Respondents:(1) Independent Office for Police Conduct(2) Ms K Souter Heard at: East London Hearing Centre On: 1 February 2024 Before: Employment Judge Reid Representation Claimant: in person – not represented Respondent: Ms K Hosking, Counsel Written reasons have not been requested but are being provided in the light of the reasonable adjustments requested in the Claimant’s agenda for this hearing; the Claimant has difficulties processing and may have found it difficult to fully take in the oral reasons given at this preliminary hearing. REASONS (amendment application)[1]The Claimant made an amendment application dated 8 December 2023 to make two sets of amendments to her claim,(1) to add in (a) anxiety and (b) depression as two additional claimed disabilities and(2) to add in two claimed acts of direct disability discrimination (already pleaded as acts of race discrimination). The Respondents agreed the latter set of amendments but not the addition of the two new claimed disabilities. The law relating to amendment of claims[2]The power to amend is a general case management power (Rule 29 of the 2013 Rules of Procedure). I need to consider whether to grant or refuse the application to amend is in accordance with the overriding objective (Rule 2). The claim form is not a ‘jumping off point’ to which a claimant can freely add things they have forgotten to include.[3]The power to amend is a judicial discretion to be exercised “in a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions”: see Selkent Bus Co v Moore [1996] IRLR 661. I have reminded myself of the Selkent factors (see below) (which are not a checklist) and the Presidential Guidance at relevant paragraphs including 4-5.[4]Whenever the discretion to grant an amendment is invoked, a tribunal should take into account all the circumstances, including the nature of the Case Number: 3201051/2023 2 amendment, the applicability of time limits and the timing and manner of the application. The Tribunal may take into account as potentially relevant factors the factors set out in s33(5) Limitation Act 1980, namely(a) the length of and reasons for the delay(b) the effect of the delay on the cogency of the evidence(c) the conduct of the parties including the provision of information and whether they acted promptly once aware of relevant information and(d) steps taken to obtain advice. These are not however a checklist (Adedeji v University Hospitals Birmingham NHS Foundation Trust. [2021] EWCA Civ 23).[5]It is then necessary to balance the hardship and injustice of allowing the amendment against the injustice and hardship of refusing it. (Cocking v Sandhurst [1974] ICR 650).[6]The consequences of a refusal should be considered ie what are the real practical consequences of allowing or refusing the amendment, taking into account how severe the consequences of a refusal would be and if considering allowing it, what the practical problems might be in responding, looking at the reality; this involves consideration of witnesses’ memory and the availability of relevant records (Vaughan v Modality Partnership [2021] IRLR 97). Nature of the amendment[7]In this case the nature of the amendment was substantial, namely adding in two additional claimed disabilities to the existing claimed disabilities of ADHD and autism. The same acts of discrimination were factually relied on in relation to the two extra disabilities ie the Claimant made her claim as to a reason for the treatment (ie the claimed disability) in the alternative and did not identify any act of claimed disability discrimination as solely related to only one condition. However the two new conditions were a new area of factual enquiry as to the claimed disability and the knowledge issue. There is a reasonable adjustments claim which in particular would require a material amount of extra consideration and preparation by the Respondent.[8]In order to determine whether the amendment amounts to a wholly new claim, as opposed to adding or substituting a new cause of action linked to or arising out of the same facts as the original complaint, it is necessary to examine the case as set out in the claim to see if it provides a causative link with the proposed amendment: see Para 11 of the Presidential Guidance. In this application these are two new conditions because the claimed acts of discrimination already pleaded are said to arise from the two already claimed conditions of ADHD and autism. I recognise that the two existing conditions and the two new conditions are all mental/cognitive conditions. I accept that anxiety and depression may often occur when someone has ADHD or autism but they are different conditions with different symptoms and a different impact.[9]A new area of enquiry will therefore be required in particular in relation to knowledge which will be harder to do as two relevant managers have now left the Respondent. The two new claimed disabilities will require assessment of the legal issue of whether the two new conditions meet the Case Number: 3201051/2023 3 definition of disability in the Equality Act 2010 at the relevant time involving assessment of medical evidence and assessment of whether there is any connection between the two new conditions and the claimed mistreatment. The reasonable adjustments claim in particular would have to be reconsidered.[10]Whether substantial different areas of enquiry are involved in the new claim and the extent of the difference between the factual and legal issues in the old claim and in the new claim are relevant; the greater the areas of enquiry and the greater the difference between the old and new factual and legal issues, the less likely it is that it will be permitted. Where the new claim is wholly different from the old claim , it should not be a way to circumvent time limits, in the absence of special circumstances; however it is different when the old and new claims are closely connected (particularly therefore in a ‘relabelling’ case) (Abercrombie & Others v Aga Rangemaster Ltd [2014] ICR 209).[11]This is not a ‘relabelling case’; although the same acts of discrimination are factually claimed, a reason for the treatment are two new different medical conditions. There will be new areas of medical and legal enquiry. I accept that anxiety and depression can result from ADHD and autism and that the same acts of discrimination are claimed (meaning that the same factual findings to an extent would be needed across many areas of factual dispute), however adding in new medical conditions as a reason for the treatment is a substantial difference to the claim as presented, which the Respondent was reasonably entitled to assume was her claim. Time Limits and Manner of application[12]The need for an amendment was identified at the last preliminary hearing on 29 September 2023. The Claimant presented her claim on 11 June 2023. The last act complained of in her claim form is her dismissal on notice on 5 December 2022 which took effect on 5 January 2023. There is already an existing time limit issue on the existing claim for the Claimant as identified in para 3 of the Respondent’s response. This particular amendment was out of time.[13]The Claimant said at this hearing that she was not aware of how Tribunal claims work – she said she had an understanding of criminal law but not civil law. She has brought a Tribunal claim against her previous employer the Met in 2021 (which is still ongoing with the final hearing in June 2024) so she is not unfamiliar as to how Tribunal claims work. From her previous work at the Met and with the Respondent she has experience of the need for accurate documents and in assessing documents and the need for accuracy and completeness. She had the skills to ensure her claim was complete when she presented it even if she did not have legal representation. Balance of hardship and assessing all the circumstances Case Number: 3201051/2023 4[14]The hardship to the Claimant would be being unable to put her disability claim in two further alternative ways (in addition to the two ways already put as regards ADHD and autism). I have taken into account she is not legally represented. I acknowledge that practically speaking under the Order made at the last hearing (and subject to this amendment application), she has already provided her disability impact statement covering all four conditions and her GP notes as regards her claim of anxiety and depression.[15]In terms of the practical effect on the timetable, some of the main case management deadlines have not yet been reached and the Claimant has provided her disability impact statement to include the two new claimed conditions and GP records about her anxiety and depression; the practical effect on the timetable as regards the provision of medical evidence is not a particular factor against the Claimant in the analysis. However there would be a practical impact on the Respondent as now required to assess two new conditions (and related medical evidence and the disability impact statement beyond as it relates to ADHD and autism)) and address the knowledge issue when not all witnesses remain employed. The scope of the claim would be larger and that increase is not minor. The final hearing has already been listed.[16]Having taken into account all the submissions of the parties and applied the relevant law, I conclude that the Claimant’s application to add in the two new claimed disabilities of anxiety and depression should be refused in all the circumstances. I have taken into account the overriding objective in Rule 2 in particular the need to take into account dealing with cases proportionately and saving expense. I acknowledge the need to be flexible and avoid unnecessary formality but this amendment is not minor and requires more of the Respondent’s time and costs than it reasonably envisaged when the claim was presented. The amendment is out of time and the Claimant could have included these two conditions when she presented her claim.[17]Weighing it up, the prejudice to the Respondent outweighs the prejudice to the Claimant – the Claimant can still pursue her claim in relation to the existing claimed disabilities of ASD and ADHD and in relation to all the same claimed acts of discrimination. I have taken into account that she is not legally represented but she knew she had had anxiety and depression since 2019 for which she had received treatment when she presented her claim form and knew how those conditions had affected her when employed by the Respondent.