Mr P Alfred v The Commissioners for HM Revenue and Customs and Maxtian Interim Ltd: 3201323/2022

EMPLOYMENT TRIBUNALS

Case No 3201323/2022

Between

Mr Philton AlfredClaimant

(1) The Commissioners for His Majesty’s Revenue and Customs (2) Maxtian Interim LimitedRespondent

Before

Employment Judge O’Brien

In person for claimant

Mr T Kirk (instructed by Counsel) for respondent

Date 13 April 2023

JUDGMENT

[1]The claimant’s application to amend his claim is refused.

[2]The claimant’s claim is struck out as having no reasonable prospects of success.

REASONS

[1]The Claimant worked at the premised of the First Respondent for a period between 15 November 2017 and 30 June 2018. He was supplied to do that work by the Second Respondent. The Claimant presented an ET1 on 26 March 2022. He complains of unfair dismissal and race discrimination.

[2]A closed preliminary hearing took place before Employment Judge Crossfill on 23 September 2023. In his note of that preliminary hearing, Employment Judge Crossfill summarises the procedural history to that date, and I need not rehearse it here. Suffice to say that the claimant objected to acceptance of both respondent’s responses and wished to amend his claim to add a large number of additional complaints. He also recorded that the issue of whether Tribunal had jurisdiction to hear claimant’s claims remained unresolved despite an order dated 26 April 2022 that an open preliminary hearing be held to consider the point given the claimant’s delay in bringing these claims.

[3]Consequently, Employment Judge Crossfill ordered this open preliminary hearing. He did so knowing that the second respondent would not be able to attend or be represented today.

[4]The hearing was listed to deal with the following matters:(i) Whether the claimant has no reasonable prospects of showing that his claims were presented within the statutory time limits such That his claims should be struck out pursuant to rule 37 of schedule one of the Employment Tribunals (constitution of rules and procedures) regulations 2013.

(ii) Whether the claimant should have permission to amend his claim.

(iii) To make any further case management decisions.

[5]The claimant was notified that he would be expected to give evidence and might be asked questions on behalf of the other parties. In the light of the fact that the substantive issue of timeliness remained at large and the fact that the claimant would give evidence and be cross-examined today, it was agreed that I also had jurisdiction to consider today if necessary the substantive issue of timeliness rather than being limited merely to whether the claimant had reasonable prospects of succeeding in that issue.

[6]Ahead of preliminary hearing and again at the beginning of the hearing, the claimant applied for it to be vacated. The reasons in essence were that:(i) Employment Judge Crossfill had unlawfully changed the September preliminary hearing from being open to being closed and so any directions given were void.

(ii) The respondents had not challenged jurisdiction and so it was not open to the Tribunal to consider the point.

(iii) The second respondent ought to be taken to have accepted jurisdiction by the fact that it was not present in represented today.

(iv) The respondents’ responses had been submitted late, no reasons had been given by the Tribunal for extending time, and so the claimant was entitled to summary judgment.

(v) Further or in the alternative, the respondents had submitted their defence without having previously acknowledged the claim and so had failed to submit a valid defence in accordance with the Civil Procedure Rules.

(vi) The claimant’s summary judgment application had to be determined prior to this preliminary hearing.

(vii) I was not a judge qualified to hear this matter, it being a claim brought by a Crown servant.

(viii) The claimant had applied to the Lord Chancellor for his declaration that the claimant had jurisdiction in the Employment Tribunal, and so this hearing should not proceed in advance of any such declaration.

[7]Any and all other arguments discernible from the claimant’s voluminous correspondence with the Tribunal were entirely without merit and it is not proportionate to deal individually with any save those set out above.

[8]The claimant’s oral submissions were similarly dense and repetitive. Moreover, he repeatedly resisted my attempts to maintain focus in order to deal with matters within the listed period of two hours. Occasionally, I had to be quite forceful in those attempts but ultimately allowed the claimant to address each of his arguments in opening and closing, completing this preliminary hearing after four hours. It was, however, necessary to reserve my decision in respect of the substantive issues.

[9]I dealt with all of the claimant’s arguments for vacate in this hearing orally at the time and summarise my reasoning below.

[10]Employment Judge Crossfill was perfectly entitled in the circumstances before him to convert the listed open preliminary hearing into a closed preliminary hearing as part of his general case management powers. It would only have been necessary for him to give the claimant advance notice if he had intended to add a preliminary issue to be determined at the hearing. As it was, he decided with good reason that no preliminary issues should be determined at the hearing and so no advance notice was necessary.

[11]The CPR do not apply to proceedings in the Employment Tribunal. Therefore, any CPR provisions regarding the acknowledgement of service of the claim, the entering of a defence, the challenging of jurisdiction, or any other matter raised by the claimant are irrelevant to Employment Tribunal proceedings.

[12]This hearing had been listed in the knowledge that the second respondent would be unable to attend or be represented. No concession as to jurisdiction could therefore be fairly inferred from its non-attendance.

[13]The Tribunal has its own procedure rule concerning the entering of a response to an employment tribunal claim (rule 16). The respondents had each submitted responses in accordance with that rule. The first respondent had submitted its response in the prescribed form on the 28th day after it had been sent a copy of the claim form by the Tribunal. The claimant’s argument that the time expired at midnight on the beginning of that 28th day was misconceived; if the claimant’s argument were correct then for an act to have been done ‘on’ the 28th day in accordance with rule 4(1), it would have had to have been done on the 27th day. The second respondent’s response had been received within 28 days of the claim form being sent to its correct address. In other words, no ‘relief from sanctions’, as the claimant had put it, was necessary.

[14]It is well established that the Tribunal is obligated to take jurisdictional points on its own motion, even if not raised by the parties, subject only to giving the affected party reasonable and fair notice of its intention to do so. The claimant had been given such notice.

[15]The Tribunal’s procedure rules do not prescribe a process for applying for summary judgment, let alone provide that any such application must be determined prior to a preliminary hearing to decide jurisdiction. On the contrary, rule 21 prescribes a process to be initiated by the Tribunal itself should it appear amongst other things that no response has been received within the prescribed time limit. In the instant case, both respondents submitted their responses in time and so no default judgment can or will be entered. To the extent that I’m obligated to consider the claimant’s summary judgment application, it fails for that very reason.

[16]The claimant’s objection to my hearing this preliminary hearing is based on his submission that schedule 2 of the Rules of Procedure Regulations applies (in other words that these are ‘National Security proceedings’), because the proceedings relate to Crown employment. However, whether or not the latter is the case, it remains a matter of fact that there has been neither a direction by a Minister of State nor an order by the President of the Employment Tribunals under section 10 of the Employment Tribunals Act 1996. Consequently, this Tribunal is suitably composed to hear this preliminary hearing.

[17]The claimant misunderstands the provisions of s3 of the Employment Tribunals Act 1996, which do not include a power to convey on the Tribunal jurisdiction in respect of out of time claims under the Employment Rights Act 1996 or the Equality Act 2010 save as provided in those acts.

[18]Therefore, I refused the claimant’s application to vacate this hearing and proceeded to deal with the preliminary issues identified by Employment Judge Crossfill.

[19]The claimant gave evidence on the basis of a written witness statement which he confirmed to be true and was cross examined. Mr Kirk relied on a skeleton argument developed orally in closing submissions. The claimant gave oral submissions which in the main comprised a repetition of the arguments list above, although he did in part raise arguments as to why the delay in submitting his claim should be excused.

[20]I indicated at the end of the hearing that I had to attend to another matter and that I would in the circumstances have to reserve my decision. It is regrettable that I have been unable to dictate these reasons earlier, due to my other judicial commitments; however, they have been prepared on the basis of extensive notes taken at the hearing.

[21]I was surprised nevertheless have drawn to my attention today an application from the claimant for reconsideration of my ‘decision’ on 18 January 2023 to determine proceedings on paper and not at the hearing. The basis of the claimant’s application appears to be a misconception that reserving a decision and delivering it in writing equates to determining proceedings without a hearing. Plainly that was not the case, as this decision has been reached after a lengthy and detailed hearing at which the claimant and first respondent attended. Insofar as the claimant is applying for me to reconvene the hearing in order to hand this decision down orally, I refuse that application on the basis that it would be disproportionate to do so. The Law Amendments

The Law

[22]In deciding the amendment applications, I applied the guidelines and approach set out in Vaughan v Modality Partnership

UKEAT/0147/20/BA

. HHJ Tayler considers the well-known authorities on amendment (Cocking, Selkent, Abercrombie and Safeway) but makes clear, however, that the Selkent factors should not be taken as a checklist to be ticked off but rather are facts to be taken into account in conducting the fundamental exercise of balancing the injustice or hardship of allowing or refusing the amendment.

[23]The Tribunal must start by considering the real practical consequences of allowing or refusing the amendment. This requires a focus on reality rather than assumptions and needs representatives to take instructions where possible (paragraph 21). The Tribunal must consider the practical importance of the amendment – the real question is not whether refusal prevents the party from getting what they want, rather will they be prevented from getting what they need (paragraph 22). HHJ Tayler suggests that the balancing exercise requires consideration of the injustice to both sides (allowing or refusing) but quantitively and qualitatively, looking at the relative and cumulative significance of the relevant factors (paragraph 26). Maintenance of discipline in tribunal proceedings and avoiding unnecessary expense are relevant considerations but the key factor remains the balance of justice (paragraph 28). A lengthy delay will inevitably result in some fading of memory, although specific details are better than supposition.

[24]The following factors are likely to be relevant when exercising my discretion and in assessing the balance of injustice:(1) whether or not the application proposed is minor or substantial;

(2) the application of time limits and whether there should be any extensions; where the claimant proposes to include a new claim by way of amendment, the tribunal must have regard to the relevant time limits and, if the claim is out of time, to consider whether the time should be extended under the appropriate statutory provision (reasonable practicability or on the just and equitable ground, as the case may be).

(3) the timing and manner of the application, including why an application was not made earlier and why it is being made at this stage. However, delay in itself should not be the sole reason for refusing an application. Strike Out

[25]An Employment Judge has power to strike out a claim on the ground it has no reasonable prospect of success under Employment Tribunal Rules of Procedure 2013 rule 37. The power to strike out a claim on the ground that it has no reasonable prospect of success may be exercised only in rare circumstances.

[26]The test for strike out imposes a very high threshold: there must be no reasonable prospect of success. This requires the Tribunal to consider whether on a careful consideration of all available material it can properly conclude that the claim has no reasonable prospects of success. It is not a matter of whether the Claimant’s claim is likely to fail nor of asking whether it is possible that the claim will fail. It is not a test which can be satisfied by considering what is put forward by the Respondent either in the ET3 or in submissions and deciding whether their written or oral assertions regarding disputed matters are likely to be established as facts. A hearing to consider strike out should not be a mini-trial. The Claimant’s case should be taken at its highest unless conclusively disproved by (or totally and inexplicably inconsistent with) undisputed contemporaneous documents. Strike out imposes a high test given its draconian nature.

[27]As made clear in Ukegheson v Haringey Borough Council

[2015] ICR 1285

, Tribunals should be cautious in exercising the power to strike out, particularly in discrimination claims where there is a public interest in them being heard and because they are likely to be fact sensitive. I took into account that the same considerations apply in whistleblowing claims. Time Limits

[28]The time limit applicable to the claimant’s various claims is in each case three months beginning with the effective date of termination or the (end) date of the unlawful act in question (as the case may be). That time limit is extended by the duration of early conciliation, should early conciliation commence within the ordinary time limit, but not if early conciliation begins after expiry of the ordinary time limit.

[29]The Tribunal can extend time for the claimant’s claims of unfair and/or wrongful dismissal only if it was not reasonably practicable to bring the claim in time and the claim has been brought within a reasonable period after expiry of the ordinary time limit.

[30]In respect of the claimant’s claims under the Equality Act 2010, the Tribunal may admit a claim or outside the ordinary time limit if brought within ‘such other period as the Employment Tribunal thinks just and equitable’. The test requires a broad evaluation of the relevant factors. A useful guide can be found British Coal Corp v Keeble

[1997] IRLR 336

; however, the factors in that case are neither prescriptive nor exhaustive. Ultimately, it is for the Tribunal to identify where the balance of prejudice lies. The Application to Amend

[31]It is appropriate to consider the claimant’s application to amend his claim so that when I come to consider the appropriateness of striking any or all of the claimant’s complaints out, I do so with the benefit of a holistic view of his claim.

[32]The draft amendments are to be found in an 11-page document emailed to the Tribunal on 24 November 2022. The heads of claim are listed on the first two pages and the facts in support of them (such as they are) are set out thereafter.

[33]The first two heads of claim are alleged crimes under the Fraud Act 2006 and the Theft Act 1968 respectively. These are not matters in respect of which the Tribunal has jurisdiction.

[34]The 5th new head of claim alleges a failure to give notice of pension scheme or any possible contracting out thereof. However, the claimant does not explain how these matters, if true, give rise to a claim in respect of which this Tribunal has jurisdiction nor is it obvious that the Tribunal does.

[35]The 6th new head of claim alleges a failure to provide a statement of confirmation upon becoming a permanent employee. However, in order to a make a consequential application to this Tribunal (in respect of which the tribunal’s power appears to be limited to a declaration), it would have been for the claimant to be employed by the respondent in question at the time of the application. That was manifestly not the case at the time of the amendment application.

[36]The claimant fails to identify how this Tribunal has jurisdiction to consider an alleged failure to calculate and pay national insurance contributions as alleged in the 7th new head of claim or an alleged failure to provide notice of complaints procedure per the 10th new head. Neither is it clear to the Tribunal that it does have any jurisdiction. As observed by the respondent, national insurance contributions do not fall within the definition of wages prescribed by section 27 of the 1996 act and notice of a complaints procedure is not a matter prescribed in part one of the 1996 act (unlike disciplinary procedures).

[37]In his 8th new head of claim, the claimant alleges a failure to provide guaranteed pay under section 28 of the 1996 Act from the point of his unfair dismissal to date. However, such payment rises only when the employee would normally be required to work in accordance with his contract but is not provided with work, in other words whilst the employee is still employed.

[38]Whilst the claimant complains in his 9th new head of claim of a failure by the respondents to provide a written statement of reasons for dismissal. However, the claimant did not have two years continuous service at effective date of termination in order to be entitled to such a written statement.

[39]In the 11th new head of claim, the claimant asserts his entitlement to a payment under the Civil Services Compulsory Redundancy Scheme. However, he does not set out how this founds a claim to the Employment Tribunal, whether as a breach of contract or otherwise.

[40]The 12th and 13th new heads of claim are an assertion of entitlement to interest on losses. These are matters which go to remedy and are not in themselves amendments to the existing claim. Similarly, loss of future benefits (per the 15th new head of claim) is a matter which goes to remedy rather than constituting an amendment to the existing claim. I make these observations without any findings on their substantive merits.

[41]The 14th new head of claim (employee benefits lost) makes no attempt to identify the benefits in question nor the basis upon which the claimant says he had an entitlement to them, let alone how it is said that the Employment Tribunal has jurisdiction to decide the matter.

[42]The 3rd, 4th and 16th new heads of claim assert failures to pay statutory sick pay, statutory holiday pay, and other wages. Each are causes of action over which the Employment Tribunal has jurisdiction; however, there is an entire dearth of detail.

[43]The claimant fails to explain how the Tribunal has jurisdiction to consider the alleged failure to provide a ‘status determination statement’ (as alleged in the 17th of new head of claim) nor is it apparent that the tribunal does indeed have such jurisdiction.

[44]The respondent accepts that the 18th head of claim in the amendment application, wrongful dismissal, is mentioned in the original claim and so no amendment is necessary in that regard. Decision on the Application to Amend

[45]Save for the 12th, 13th, 15th and 18th heads of claim (each of which is not in fact an amendment), each of the above is substantial proposed amendment to the original claim introducing a wholly new cause of action.

[46]The first two concern criminal matters over which Tribunal has no jurisdiction and so are refused on that basis.

[47]The 5th, 7th, 10th, 11th, 14th and 17th new heads of claim each relate to matters which are apparently related to the claimant’s employment, but in respect of which the claimant has not identified nor is the Tribunal otherwise aware of any jurisdiction. Even if the tribunal had jurisdiction to consider those matters they are all so inadequately pleaded as to give rise to gross prejudice to the respondent if allowed as amendments.

[48]The 3rd, 4th and 16th new heads of claim are all matters over which the Tribunal has jurisdiction; however, they are utterly inadequately pleaded and so would as amendments similarly cause gross prejudice to the respondent.

[49]The 6th, 8th and 9th new heads of claim each relate to causes of action the claimant on any analysis is not entitled to bring either because he was not employed at the relevant time or did not have the requisite continuous service. They are, in other words, doomed to fail.

[50]In addition to the prejudice caused to the respondents by having to answer inadequately pleaded and or hopeless claims, is added the prejudice of investigating and gathering evidence in respect of matters arising so very long ago. Weighing the totality of the prejudice to the respondents against the prejudice which would be suffered by the claimant should the application be refused (a prejudice considerably tempered by his wholly inadequately explained delay in making the application) I am satisfied that the balance significantly favours the respondents. Consequently, I refuse the amendment application. Strike out

[51]I turn now to the basis of considering whether to strike the claim out: the question of timeliness.

[52]The claims are grossly out of time. The acts comprising the claimant’s complaint of discrimination all occurred during his brief period supplied by the second respondent to work for the first respondent (15 November 2017 to 30 June 2018). The claimant did not commence early conciliation until 28 February 22, and he did not present his claim to the employment tribunal until 26 March 2022. Consequently, all of his claims are around 3 ½ years out of time.

[53]I should add at this point that the claimant appeared at times to argue that his employment had still not terminated. However, that position is contrary to his pleaded case and, if accepted, is fatal to his claims of unfair and wrongful dismissal. In any event, there are no pleaded instances of discrimination subsequent to the pleaded date of termination. His suggestion today that he might have been ‘blacklisted’ by the respondents is not pleaded, and would require an application to amend.

[54]Unusually for consideration of strike out, I had not only a written statement from the claimant but also the benefit of the claimant’s evidence tested under cross-examination. Much of his statement focussed on the technical arguments he advanced in respect of whether this hearing should be vacated and/or summary judgment be given in his favour. However, the main elements of his explanation for delay can be summarised thus. The claimant thought ‘long and hard’ about the effects on his career have bringing the claim because of HMRC’s significant influence. The second respondent’s replies to concerns raised by the claimant at the time caused him confusion. Running a small business from July 2018 took a considerable amount of the claimant’s time. A new baby and the advent of Covid-19 required the claimant to prioritise his family. A number of accommodation problems between July 2020 and April 2021, and subsequently from October 2022, caused serious disruption and trauma to the claimant. As a result of anxiety and depression, associated with or exacerbated by an employment tribunal claim brought in 2020, the claimant felt unable to bring this claim any earlier.

[55]In his oral evidence, the claimant also suggested that he was unaware of Employment Tribunal procedures at any material time, notwithstanding that he brought constructive unfair dismissal claim in early 2020. He complained that he had not been given an opportunity by the respondents for dispute resolution. The claimant confirmed that he had not been told how to raise a grievance.

[56]The claimant adduced his medical records. No specific reference was made to anything in them in the claimant’s witness statement. In his oral evidence, the claimant did not point to anything in the medical records which would show issues preventing him or impeding him from bringing an employment tribunal claim either during the ordinary time limit or afterwards. Decision on Strike-out

[57]It is appropriate unfair and wrongful dismissal claims separately from the Equality Act claims, as different legal tests apply.

[58]In respect of the unfair wrongful dismissal claims, the question is whether the claimant has any reasonable prospect of persuading a Tribunal that it was not reasonably practicable to bring those claims by 29 October 2018 and that he brought the claim within a reasonable period thereafter. Taking everything the claimant said at face value, the fact remains on his own account that he made a conscious decision to delay bringing the claims for a long time whilst he weighed up the pros and cons of doing so. He was capable of running a small business immediately after the effective date of termination and also of supporting a wife and child, notwithstanding a number of unfortunate life events in or around mid-2020. He brought a constructive unfair dismissal claim in the Employment Tribunal in early 2020. There is no real prospect of any reasonable tribunal concluding other than that it was reasonably practicable for the claimant to bring a claim within the ordinary time limit but that he chose not to, and in any event that it was unreasonable for him to have delayed as long has he did.

[59]In respect of the Equality Act claims, I have to be satisfied that the claimant has no reasonable prospect of persuading a Tribunal that it is just and equitable to extend time by around 3 ½ years until 26 March 2022. Again, taking the claimant’s evidence at face value, any tribunal considering the issue would inevitably have in mind the positive choices taken by the claimant between and mid-2020 not to present the claim, the lack of evidence of any material medical impediment to bringing the case earlier, the lack of any cogent explanation for failing to bring the claimant between April 2021 and March 2022 notwithstanding the unfortunate life events occurring between July 2020 and April 2021. It would also have in mind the inevitable effect of 3 ½ years delay on the cogency of evidence, in particular given the lack of any contemporaneous grievance and therefore any timely investigation into the matters, noting also the paucity of detail given in the claimant’s own pleadings of the matters in question. The Tribunal would have in mind that there is no suggestion that the respondent has failed to cooperate in any request for information by the claimant. Indeed, the Tribunal would have in mind the claimant’s own evidence that he did not raise a grievance because he did not know and was not told how to. The Tribunal will have in mind the lack of suggestion that the claimant was unaware at the time of the fact giving rise to the presently pleaded causes of action or that he was thwarted in attempts to obtain legal advice.

[60]Any Tribunal considering whether to extend time would waive these and all the other matters raised by the claimant today in the balance and I am unpersuaded that any reasonable tribunal would find that the balance favoured the claimant. In other words, there is no reasonable prospect of the claimant persuading a tribunal that it would be just to extend time sufficiently for it to accept jurisdiction to hear these claims.

[61]Consequently, I conclude that it is appropriate to strike out both the claimant’s unfair and wrongful dismissal claims and his claims under the Equality Act 2010 on the basis that he has no reasonable prospect of successfully persuading a Tribunal to extend time.

[62]I should add that my reasoning would have been the same, and would have applied equally, to the amended claim even if I had allowed any of the claimant’s proposed amendments.

[63]Even if I were wrong to go so far as to conclude that the claimant had no reasonable prospects of success, I would nevertheless have dismissed his case as out of time, having heard his evidence challenged in cross-examination. It was manifestly reasonably practicable for the claimant to bring his unfair and wrongful dismissal claims within 3 months, and was in any event entirely unreasonable for the claimant to delay beyond early 2020 when he chose to bring a claim against another organisation. As for the Equality Act claims, the balance of injustice weighs considerably in the respondents’ favour.

The Law

[1]The claimant’s application for me to recuse myself is refused.

[2]The claimant’s application for reconsideration of my decision to refuse to permit him to amend his claim and my decision to strike out that claim is refused.

[3]The claimant shall by 6 October 2023 pay to the first respondent £4,203, in respect of costs, pursuant to rules 76(1)(a) and (b) of the 2013 Employment Tribunal Rules of Procedure.

[4]The claimant’s application for a preparation time order is refused.

The Law

[1]On 26 March 2022, the claimant presented a claim to the Employment Tribunal complaining of unfair dismissal and race discrimination. Following a preliminary hearing on 18 January 2023, in a reserved judgment handed down in writing on 13 April 2023, I refused to permit the claimant to amend his claim and struck out his claims. The claimant applied on 2 May 2023 for reconsideration of my judgment. The first respondent applied on 12 May 2023 for an order for costs against the claimant and the claimant applied in turn on 19 June 2023 for a preparation time order.

[2]Whilst ordinarily I would have considered on the papers whether the claimant had a reasonable prospect of persuading me to vary or set aside my decision and only direct a hearing if I was so convinced, in light of the other matters before me I decided to deal with the claimant’s application for reconsideration at a hearing.

[3]The claimant subsequently applied on 27 June 2023 for me to recuse myself. He wished for me to do so ahead of the hearing; however, it appeared to me more appropriate to hear full argument and decide the point at this hearing as a preliminary issue.

[4]I should add that the claimant has since this hearing bombarded the Tribunal with correspondence seeking to add to the submissions made at the hearing. Much of the submissions are repetitive of those made at the hearing. Certainly, nothing was raised in this correspondence which either was not or could not have been said at the hearing. It is disproportionate even to summarise the claimant’s subsequent correspondence and I do not do so. I do, however, record that I gave the claimant full opportunity to present his case at the hearing, almost to the disadvantage of the respondents. PRELIMINARY ISSUE – APPLICATION FOR RECUSAL

[5]The claimant’s application alleges that, at the hearing on 18 January 2023, I ‘openly told [the claimant] that he would not give a decision in [his] favour in these proceedings before the matter has even been tried’. The claimant alleged that my continued participation proceedings could not be justified and gave rise to a real risk of prejudice to the claimant.

[6]I invited the claimant at the hearing to set out as best he could what he alleges I said and which he understood to mean that I would decide against him before I even heard what he had to say. He gave two versions: ‘you can go somewhere else for that’, and ‘you know where you can go for that’. He could not remember exactly when I made the comment in question save that it was in response to his setting out his case.

[7]The House of Lords in Porter v Magill approved the following test formulated in Re Medicaments and related Classes of Goods (No.2) [2001] 1 W.L.R. 700: “The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility or a real danger, the two being the same, that the tribunal was biased.”

[8]The fair-minded observer is not unduly sensitive or suspicious (Helow v Secretary of State for the Home Department

[2008] 1 WLR 2416

). Where there are real grounds for doubt as to a lack of bias, it should be resolved in favour of recusal. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions (Locabail (UK) Ltd v Bayfield Properties Ltd

[2000] QB 451

at paragraphs 21 to 25.)

[9]The claimant was unable to explain why, if he believed me to have demonstrated bias against him at the hearing on 18 January 2023, he had not made an allegation to that effect any earlier than 27 June 2023. I recognise that one of his grounds for reconsideration was that my decision was ‘biased and perverse’. However, it is one thing to say that a decision demonstrated bias and another entirely to allege that a judge behaved in an explicitly biased manner at a hearing. Neither had the claimant taken a contemporaneous note of my supposedly biased statements. I regret to say that I have grave doubts that the claimant’s application was based on a genuine belief in my partiality as opposed to an attempt to derail proceedings.

[10]Nevertheless, turning to the substance of the application, given the claimant’s uncertainty as to the exact words used, I’m unpersuaded that I used either of the phrases alleged. However, I recall (as is recorded in my written reasons from the preliminary hearing) being faced with repetitive and unfocused submissions from the claimant and having at times to be quite robust in order to make progress. Many of the claimant’s submissions were then, as are indeed now, legally misconceived.

[11]The claimant misunderstands the obligation for me to take a claim factually at its highest when considering strike out with having to accept as well-founded any argument he may make. It is quite possible that, after giving the claimant a more than fair opportunity to argue his case, I indicated that certain submissions were weak and that he needed to move on. I may even have suggested, after the claimant refused to move on from a point despite my indicating its legal flaws, that he would be entitled to appeal against my judgment if ultimately I held against him. However, nothing I said or did, nor indeed which the claimant alleges I said or did, would lead a fair-minded and informed observer to conclude that there was a real possibility or a real danger that I was biased.

[12]Consequently, I refused to recuse myself. RECONSIDERATION OF MY PREVIOUS DECISION

[13]In an email dated 2 May 2023, the claimant applied for my decision to be reconsidered on 20 grounds:13.1 It does not conform to the ET's overriding objectives

13.2 It is a miscarriage of justice

13.3 It does not conform to the Employment Tribunal Constitution and Rules of Procedure Regulations 2013

13.4 It does not conform to the Employment Tribunal Act 1996

13.5 It does not conform to the Crown Proceedings Act

13.6 It does not conform to the Limitation Act 1980

13.7 It is biased and perverse

13.8 Both I and all other judges involved to date from the Tribunal are the wrong level of judge being that these are crown proceedings

13.9 It infringes upon his Human Rights

13.10 It does not conform to CPR rules

13.11 It is the end of what has been a cover up by the ET

13.12 It is against the rule of law

13.13 It is an abuse of a litigant in person

13.14 It could be considered fraudulent

13.15 It amounts to a conspiracy and corruption

13.16 It is a violation of his rights under the Magna Carta

13.17 It is a violation of his employment rights under many employment laws

13.18 It is a breach of trust against him and the public generally

13.19 It is an attack on justice and the sovereign laws of this land and a damage to the integrity of the law.

13.20 It is unjust and an affront to parliament who make those laws.

[14]Rule 70 of the 2013 Employment Tribunal Rules of Procedure provides that a tribunal may, on its own initiative or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so.

[15]I gave the claimant should an opportunity to clarify his written grounds at the hearing. In oral argument it appeared that some of these criticisms were actually levelled against the other parties rather than necessarily at myself. Nevertheless, I treated his criticisms as broad enough also to appertain to my decision.

[16]They principally revolve around matters of procedure and what the consequences of those matters of procedure ought to have been vis-à-vis the respondents being permitted to defend the case.

[17]Much of what was submitted was, or could reasonably have been, raised before me in January, and so now offended the principal of finality of litigation. Consequently, the interests of justice did not require reconsideration of my judgment on the basis of such arguments. Nevertheless, in the hope that the claimant might better understand why his core arguments are unmeritorious, I deal with the principal strands his reconsideration submissions below.

[18]There are two aspects to the claimant's arguments regarding the engagement of the Crown Proceedings Act 1947. First, that by dint of his claim against the first respondent being Crown proceedings as defined, the CPR apply. Second, because s1 Crown Proceedings Act 1947 provides that he does not need the fiat, or in other words the permission, of His Majesty to bring the claim, that section resolves jurisdiction entirely in his favour.

[19]The second point can be dealt with quickly. Requiring a claimant to bring a claim within a statutorily prescribed time limit is plainly not the same as requiring the Crown’s permission to bring a claim.

[20]As for his first argument, CPR 66.1 provides in particular that: ‘civil proceedings against the Crown’ means the civil proceedings described in section 23(2) of the [1947] Act, but excluding the proceedings described in section 23(3);

[21]It is not necessary to set out the provisions of s23 of the 1947 Act save that s23(4) provides that: ‘Subject to the provisions of any Order in Council made under the provisions hereinafter contained, this part of this Act shall not affect proceedings initiated in any court other than the High Court or the county court’.

[22]The claimant has not taken me to any such Order in Council extending the operation of the Crown Proceedings Act into the Employment Tribunal. Therefore, I do not I accept that the Civil Procedure Pules (or indeed any rules of procedure of any other superior court mentioned by the claimant) apply in preference to or supersede the Employment Tribunal Rules of Procedure. Moreover, the claimant has no reasonable prospect of persuading me that they would.

[23]The claimant complaints that the Tribunal permitting of its own motion an amendment to the respondent’s name is a breach of his human rights, his rights under the Magna Carta et cetera. Of course, this was a decision taken long before my involvement and therefore cannot be a basis for me to reconsider my own decision. It is in any event an entirely misconceived complaint, dealt with comprehensively by Deputy High Court Judge Carr KC in dismissing the claimant’s appeal against that procedural decision amongst others under rule 3(10) on 25 May 2023 (case numbers EA-2022-000648-JOJ and EA2022-000995-JOJ).

[24]I need not deal in any detail of the claimant’s submissions on the timeliness of the respondent’s responses. Not only was nothing said today which would give rise to any reasonable prospect of my reaching any other conclusion on the point but also, more importantly, the point is immaterial. The claimant’s argument is that, because no timely response was submitted and because no application had been made for relief from sanctions, his claim should succeed by default. However, that is simply not the case.

[25]It is well established that under the Employment Rights Act 1996 and the Equality Act 2010 time is a matter of jurisdiction which has to be dealt with by the Tribunal irrespective of the parties’ actions and irrespective of any purported agreement between the parties. In other words, whether the Tribunal has jurisdiction a matter for of law the Tribunal to satisfy itself.

[26]The claimant argued that the Limitation Act 1980 applied to his claims. Of course, the limitation periods in that act are considerably more generous than those to be found in the Employment Rights Act 1996 and the Equality Act 2010. However, s39 Limitation Act 1980 provides: This Act shall not apply to any action or arbitration for which a period of limitation is prescribed by or under any other enactment (whether passed before or after the passing of this Act) or to any action or arbitration to which the Crown is a party and for which, if it were between subjects, a period of limitation would be prescribed by or under any such other enactment.

[27]Each of the claimant’s complaints in this claim are complaints to which a period of limitation is prescribed under another act of Parliament, and so the limitation act 1980 does not apply.

[28]That leaves multifarious complaints about my own approach to the claimant and his claim. I rejected above an application to recuse myself on the basis of bias. I recall well, and it is evident from my written reasons, extending the claimant every opportunity to fully argue his case in January and have done so again today. It is a regrettable attribute of the claimant that he considers anything less than full agreement with him as evidence of bias and anything short of full rein to say whatever he wants whenever he wants (even during the handing down of judgment) as unfairness. He has advanced no well-founded basis for concluding that the interests of justice require any variation to my January judgment. COSTS ORDER

[29]The first respondent applied on 12 May 2023 for an order for costs on the basis of unreasonable conduct and on the basis that the claimant’s claims had no reasonable prospect of success. I need not repeat the contents of the application. Suffice to say that the first respondent argued that the claimant must have known from the outset that his claims were significantly out of time and had no reasonable prospect of success and yet he persisted not only in the claim itself but repeated applications and appeals putting the first respondent to great unnecessary expense. The claimant resisted the application not only in principal but on the grounds of his lack of means to pay.

[30]I gave both parties the opportunity to supplement their written submissions and heard a little from the claimant about his means despite his reluctance to give sworn evidence on the point. The Relevant Rules

[31]A costs order is an order that one party makes a payment to another in respect of costs (rule 75(1)(a)), Tribunal fees (rule 75(1)(b)) and/or attendance expenses (rule 75(1)(c)).

[32]Rule 76(1) provides: A Tribunal may make a costs order or a preparation time 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; or

(b) any claim or response had no reasonable prospect of success.

[33]Pursuant to rule 77, a party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. No such order may be made unless the paying party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order) in response to the application.

[34]A costs order may in particular order the paying party to pay the receiving party a specified amount, not exceeding £20,000, in respect of the costs of the receiving party (rule 78(1)(a)) or to pay the receiving party the whole or a specified part of the costs of the receiving party, with the amount to be paid being determined, in England and Wales, by way of detailed assessment carried out either by a county court in accordance with the Civil Procedure Rules 1998, or by an Employment Judge applying the same principles (rule 78(1)(b)).

[35]In deciding whether to make a costs, preparation time, or wasted costs order, and if so in what amount, the Tribunal may have regard to the paying party's (or, where a wasted costs order is made, the representative's) ability to pay (rule 84).

[36]In respect of the quantum of costs under an order granted on the basis of unreasonable conduct, in Barnsley Metropolitan Borough Council v Yerrakalva

[2012] IRLR 78

at para 41 Mummery LJ said: ‘The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had.’

[37]In Raggett v John Lewis plc

[2012] IRLR 906

, Slade J said that the proper approach to costs under the vexatious/unreasonable conduct limb is as follows:(a) the tribunal need not identify the particular costs incurred by particular conduct; instead it should look at the whole picture and the overall effects of the conduct;

(b) the tribunal may also take into account the conduct of the party applying for costs;

(d) although the CPR do not apply directly to Tribunal proceedings, in general the Tribunal should follow their general principles (though not necessarily to the letter in all cases).

Conclusions

[38]Following a preliminary hearing on 18 January 2023, I struck out the claimant’s claim on the basis that it had no reasonable prospects of success.

[39]The respondent has accurately set out the chronology of this claim. It reflects my personal experience of the claimant making persistent repetitive applications. I have also experienced now twice the claimant being disruptive in hearings and unwilling to accept any outcome less than total agreement with his point of view. In short, I accept that the claimant has acted disruptively and unreasonably in his conduct of proceedings.

[40]I took into account as best I could the claimants means. Despite clear directions to provide a schedule of income and outgoings with supporting evidence, the claimant provided nothing but mere assertions. Moreover, when asked about his means, the claimant was once again uncooperative, obstructive and argumentative. He was not an impressive witness and I gravely doubt that he is as short of funds as he claims. However, it is my judgment that a costs order is necessary irrespective of the claimant’s immediate ability to pay. His behaviour in conducting proceedings was so egregious that I consider a costs order necessary to deter further repetition. Nevertheless, I consider it appropriate to give the claimant a period of time to gather the funds to pay the amount ordered.

[41]Turning to the question of that amount, I considered it inappropriate in all the circumstances to award any costs prior to the first respondent’s costs warning letter of 10 October 2022. It appeared to me that the first respondent should be awarded costs from the next major event: the beginning of preparation for the hearing before me on 18 January 2023. The only evidence of costs from that point were to be found in an invoice of 9 March 2023 showing £1,575 profit costs and £2,628 counsel’s fees. I suspect that more costs were incurred by the first respondent thereafter; however, it did not appear that evidence of subsequent costs had been provided to the claimant in advance of this hearing. It would not, in my judgment, be fair to award such additional costs today.

[42]Giving the claimant time to address his claimed banking difficulties, I ordered that the claimant pay £4,203 to the first respondent by 6 October 2023. PREPARATION TIME ORDER

[43]The claimant made a preparation time order application on 19 June 2023. This application was made well out of time, without any good reason. However, I have no doubt that the claimant would renew the application in time after receipt of this decision and so I extend time to admit his application.

[44]The basis of his application in essence was unreasonable conduct on the part of the first respondent. That unreasonable conduct related in part to the repeatedly rejected submission that the first respondent had submitted its response late, but extended to unreasonable delay thereafter. To the extent that there was any such delay, I considered that the claimant had been compensated adequately by my disallowing costs prior to preparation for 18 January 2023 preliminary hearing, especially given his own unreasonable conduct. Consequently, I make no preparation time order.