Mr P Hall v Transport for London and others: 3201877/2021 and others

EMPLOYMENT TRIBUNALS

Case No 3201877/2021

Between

Mr P HallClaimant

(1) Transport for London (2) Mr C Walker (3) Mr H CarterRespondent

Before

Employment Judge Reed

In person for claimant

Ms R Thomas (instructed by Counsel) for respondent

Date 10 May 2023

JUDGMENT

The judgment of the Tribunal is that the Claimant cannot take forward against any of the Respondents his claim that he suffered detriments by reason of protected disclosures.

REASONS

Legal Principles

[1]In this claim the Claimant Mr Hall commenced proceedings against three Respondents, namely his employer and two of his colleagues, claiming (amongst other things) that he was subjected to detriments as a consequence of making a protected disclosure. This was a preliminary hearing as part of a case management hearing in order to determine whether such claims could go forward.

[2]I did not take evidence but my attention was directed to various documents and I heard submissions from Mr Hall and Ms Thomas. The relevant facts, which were not disputed, were as follows.

[3]On 3 June 2019 and 28 May 2020, Mr Hall commenced proceedings against the First Respondent. The 2020 proceedings were stayed pending the outcome of the hearing addressing the 2019 claim. Case Number: 3201877/2021

[4]In the 2019 claim Mr Hall alleged that he had made a protected disclosure to his MP, Oliver Heald QC on 3 November 2017. By a judgment promulgated on 4 June 2021 the Tribunal determined that the communication in question did not amount to a protected disclosure. In the current claim he again asserted that precisely the same communication to Mr Heald was a protected disclosure, for which he had been subjected to detriments. This was a hearing to determine if he was entitled to make such a claim in the light of the doctrine of res judicata.

[5]The doctrine of res judicata (meaning "a matter judged") prevents a party from relitigating any claim, defence or issue which has already been litigated. The doctrine is designed to ensure the finality of judgments and conserve judicial resources.

[6]The Tribunal having reached the conclusion that no protected disclosure was made, as against the parties to that claim the matter was finally determined. It follows that as against the First Respondent Mr Hall cannot again assert that it was a protected disclosure.

[7]The real issue for me in this case was whether that was the principle that applied in relation to the Second and Third Respondents, employees of the First Respondent. They were not parties to the 2019 claim.

Analysis

[8]The leading case on this question is Gleeson v J Wippell & Co ChD [1977]. There must a “sufficient degree of identity” between the parties to the original action and the “new” party in order for the principle to apply. They must have privity of interest.

[9]It seemed to me that was undoubtedly the case here. The only reason the Second and Third Respondents had been added as parties was that they were alleged to be the very actors who had subjected Mr Hall to a number of the detriments. They were employees of the First Respondent and, for the purposes of these proceedings, the agents of the First Respondent. There was an identity of interest between them and the First Respondent.

[10]Since in the current (unamended) claim, the only protected disclosure relied upon was that referred to above, it followed that the claims against all three Respondents in the present proceedings could not go forward.

[11]For the avoidance of doubt, this declaration applies only to the claims of whistleblowing detriment.

[1]This judgment deals with the Respondents’ application, dated 21 November 2021, to strike out certain allegations claims 3201533/2021 and 3201877/2021 (known as ‘claim 3’).

[2]The Claimant is disabled, experiencing depression and anxiety. At the start of the hearing I checked whether any he needed any adjustments to the usual Tribunal day. He indicated not, but that he would inform me if he needed any as the day progressed. He asked for one break, which I allowed. Miss Thomas indicated the Claimant had asked that oral submissions be kept to a minimum and she did so. I progressed more slowly than I would normally have done at the hearing in order to ensure that the Claimant had time to follow what was being said without undue stress and in order that I understood his claims.

[3]The hearing was interrupted for about an hour by a fire alarm. This meant that I did not have time fully to case manage claims 2 and 4. I lifted the stay in claim 2 and listed a further Preliminary Hearing (Open) on 22 February 2023, with a time estimate of 1 day, to deal with the Respondents’ application to strike out claim 2 and any other issues I decided to raise on my own initiative. I made Case Management Orders for this hearing by consent. The parties should note that I have added to those orders in writing. They should read the separate Orders and follow them. Procedural History of Claims

[4]The relevant procedural history is as follows: 3 June 19 Claim 3201457/2019 (‘claim 1’) v R1 presented: alleged public interest disclosure detriments; s15 disability discrimination; failure to make reasonable adjustments 28 May 20 Claim 3201450/2020 (‘claim 2’) presented v R1 alleged deduction of wages. Stayed until today. Unknown date At a Preliminary Hearing the Claimant was found to be a disabled person from 1 November 2016. The impairment is anxiety and depression. 11-14, 18 Aug 20 Hearing of claim 1, part-heard due to illness 30 Nov 20 C raised internal grievance. Before Xmas 20 C started drafting claim 3 7-11 Jan 21 C in hospital with covid 21 Jan 21 ACAS EC began with R1 4 Mar 21 ACAS EC ended with R1 2 April 21 Claim 3201533/20 presented v R1 (rejected re R2 and R3) (‘claim 3’): victimisation; indirect disability discrimination; and PID claims subsequently struck out. 8-9 April 21 ACAS EC with R2 and R3 10 April 21 Claim 3201877 presented v R1 R2 R3 the same content as claim 3 (also ‘claim 3’) 12, 13, 14 May 21 Resumed hearing of claim 1, C did not attend 3 June 21 Judgment in claim 1 sent to parties: all claims failed. None of the disclosures were protected. 10 Nov 21 Preliminary Hearing (EJ Reed) in claim 3. List of Issues clarified. Case Management Orders. Listed for final hearing May 2023. C ordered to give further information for indirect discrimination claim. PID claims struck out. 19 Nov 21 Further Information from C about claim 3. 21 Nov 21 Rs’ application to strike out parts of claim 3. 14 Jan 22 Claim 2300144/22 presented (‘claim 4’) v R1, R4. Not yet case managed: PID detriments; indirect disability discrimination; deduction of wages. 17 Nov 22 Preliminary Hearing (open) for strike out application in claim 3. 22 Feb 23 Planned Preliminary Hearing (open). 2-5, 9 May 2023 Final hearing listed for claims 2, 3 and 4. Application to Strike Out Parts of Claim 3

[5]A List of Issues in claim 3 was clarified at the preliminary hearing before EJ Reed. I set out the issues I must deal with today.

[6]First, a victimisation allegation, based on the protected act of claim 1 on 3 June 2019, that the Claimant was subjected to the alleged detriment of the First Respondent ‘not keeping detailed records of the fraud investigation interview with Mr McCurry … in January 2018’. (Para 27(b) of the particulars of claim; Issue 2(a) of the current List of Issues.)

[7]Second, an indirect disability discrimination claim based on two practices (PCPs): 7.1. A practice of ‘consistently failing to provide resolution of grievances related to whistleblowing … in 2014, [20 August] 2017 and [30 November] 2020’ (Para 33(a) of the particulars of claim; Issue 5(a) of the current List of Issues.) 7.2. A failure generally to provide feedback on the outcome of investigations. (Derived from para 33(b) of the particulars of claim as clarified in the Preliminary Hearing at paragraph 51 of EJ Reed’s summary; Issue 5(b) of the current List of Issues)

[8]In relation to the first PCP (about grievances) the Claimant alleges a failure to resolve his grievance of 30 November 2020 by Mr Carter, the Third Respondent and First Respondent’s General Counsel, closing it down. The Claimant alleges this was the third time that he had raised a grievance that was not investigated or concluded. He relies on two previous grievances, in 2014 and 2017, that he alleges were not investigated or concluded. (Paragraphs 21 and 22 of the Particulars of Claim.)

[9]In relation to the second PCP (about investigations) the Claimant provided further information as follows: 9.1. In February 2015 by Mr McCurry failing to update him following ‘disclosure’ by the Claimant of his concerns (point 1); 9.2. In October 2017 by Ms Wright not answering his request to provide details of investigations as a consequence of ‘my whistleblowing’ (point 2); 9.3. In January 2018: by Ms Buchan not arranging a meeting after a request; and by Mr Walker not responding to a question whether there had been fraud investigations (point 3); 9.4. On 13 October 2020 by Mr Walker (the Second Respondent) not answering a question, based on his witness statement in claim 1, about what ‘whistleblowing investigations’ had been undertaken (point 4); 9.5. On 15 November 2021 (post-dating claim 3) a (then) very recent letter of 15 November 2021 requesting what investigations had been undertaken ‘as a consequence of my whistleblowing’. It cannot be an allegation in the claim: having arisen after the claim was presented. I asked the Claimant whether he wished to apply to amend his claim to include this allegation. He did not wish to make that application at this time. The Claimant’s questions were about what investigations had taken place.

[10]The Respondents apply to strike out these allegations because they say it is an abuse of process to bring them because of the rule in Henderson v Henderson. They submit the allegations could and should have been brought in claim 1 either initially or by amendment, and it is an abuse of process not to have done so. As a result they say they are harassed by the claims.

[11]Miss Thomas also submitted that the victimisation allegation had no prospect of success because it came logically before the protected act. Thus, the alleged detriment could not have been because of the protected act.

[12]In the alternative, the Respondents submit that the claims have been brought out of time; they do not form part of any continuing conduct; and it is not just and equitable to extend time.

[13]A few days before the hearing, the Claimant wrote to the Tribunal with a specific disclosure request and contended that this should be decided before the Respondents’ application, which ought to be postponed. I did not agree to this approach because documents that the Claimant had not yet seen were not required for me to decide the Respondents’ application.

[14]I first heard submissions about the abuse of process point. I then heard evidence from the Claimant about his health and the reasons why he put in claims 3 in April 2021 rather than earlier. I then heard submissions on the time point. Both parties provided outline written submissions. Claim 1 and Judgment

[15]It is necessary for me to set out, so far as is relevant, what claim 1 was about and what the tribunal decided in it.

[16]In claim 1 the Claimant alleged that he had been treated badly by his employer because he was a whistle-blower: in legal language, that he had been subjected to various detriments for having made public interest disclosures.

[17]An employee who raises concerns with his employer about wrongdoing and who says he was subject to detriments by his employer for having raised those concerns, must first show that what he said or wrote was a ‘qualifying disclosures’ under section 43B of the Employment Rights Act 1996 (‘ERA’). In claim 1 the Claimant failed to establish this. The tribunal decided that he did not disclose information tending to show a breach of a legal obligation or criminal offence and/or that he did not have a reasonable belief that the information contained in the disclosure tended to show fraud. In normal language, he was judged not to have been a ‘whistle-blower’ and his claims failed, see the Judgment paragraphs 157-176.

[18]In summary, the disclosures in claim 1 were about the same concerns the Claimant identified for me at this preliminary hearing: a potential conflict of interest and/or a suspicion of ‘wrongdoing’ and/or a risk of fraud.

[19]Even though the Tribunal did not have to do so, it also reached conclusions about whether the Claimant had been subject to the detriments he alleged in claim 1. 19.1. Detriment5.1 was ‘Ms Fearon-McCaulsky’s alleged failure to provide details of the progress of the investigation following the Claimant’s disclosure of his concerns to her in June 2014’. At paragraph 178 of the judgment, the Tribunal decided that, ‘while the Claimant’s email to Mr Nurworgah asked for an investigation, we have found there was no investigation. There was therefore no failure … to provide details of the progress of any investigation.’ 19.2. Detriment

5.2 was ‘In July 2014, Mr McCurry failing to resolve the Claimant’s grievance.’ At paragraph 182, the Tribunal decided Mr McCurry, an employee in HR, was not involved in the grievance but it had been considered by Mr Thomas and rejected. The Claimant had not appealed. 19.3. Detriment 5.4 was ‘In February 2015, Mr McCurry failing to provide details of the progress of the investigation following the Claimant’s disclosure of his concerns’. At paragraph 183, the Tribunal found this to be a detriment. It decided ‘on the balance of probabilities, it was an oversight by Mr McCurry not to get back to the Claimant on this issue.’ 19.4. Detriment 5.8 was ‘Between August 2017 and January 2018 Ms Wright’s inaction in addressing the Claimant’s concerns’. At paragraph 187 the Tribunal rejected this point because it did not agree that her responses were ‘inaction’. She had referred the Claimant’s concerns to internal audit for investigation. The Tribunal’s full findings of fact about this matter at paragraph 71-73 are important: after Ms Wright’s referral to internal audit, Mr Brooker, then Head of Fraud, the contacted the Claimant on 21 December 2017 asking for an outline of the issues and offering a meeting. (He also wrote to Mr McCurry asking for further information.) The two met on 18 January 2018 but the Claimant ‘left the room when he was asked for details of the nature and extent of the wrongdoing and the people involved. Mr Brooker explained that without these details he would not be able to progress a fraud investigation. The Claimant suggested to him this approach was ‘aligned with preserving a cover up’. Mr Brooker responded to the Claimant ‘saying he was unable to proceed without any further detail and therefore considered the matter closed.’ Ms Wright confirmed to the Claimant there would be no investigation. 19.5. Detriment 5.13 was on 6 February 2019 Ms Buchan informing the Claimant that his grievance was closed when it had not been properly investigated or concluded. At paragraph 193 the Tribunal decided that this was a detriment. It stated, ‘In late 2017 the Claimant had asked for his grievance against Mr McCurry to be suspended. He now wanted this grievance to be reactivated …’ The Tribunal held it was inappropriate for Mr McCurry to play any part in deciding whether a grievance about him should be continued or regarded as closed. Nevertheless the Tribunal found that ‘it more likely that the only reason for the decision to close down the grievance was taken because of an erroneous belief that the matters had already been addressed’.

[20]In relation to alleged investigations and feedback, the Tribunal’s findings of fact show that there was a general investigation into conflicts of interest before the Claimant raised his concerns (paragraph 39). It was this information that Mr McCurry had not fed back to the Claimant (paragraph 39). No investigations had taken place into the Claimant’s concerns. This is unsurprising, given the Tribunal’s decision that they were not qualifying disclosures and the then Head of Fraud’s explanation for why he could not progress an investigation. The Tribunal dealt with the facts on this in detail in its judgment: 20.1. On 13 January 2017, the Claimant asked for information about investigations. Mr McCurry said he had no knowledge of the public interest wrongdoing claim and suggested the Claimant follow it up with the original parties (paragraph 61). 20.2. There was the abortive Head of Fraud interview, see above. The feedback to the Claimant was that there would be no investigation. 20.3. On 30 July 2018, Mr McCurry wrote to the Claimant informing him in relation to the ‘business ethics concern’ he had previously raised that the First Respondent was unable to take it any further forward and in the absence of evidence he considered it closed, (paragraph 82). The feedback was that there was no investigation. 20.4. On 13 September 2018, Mr McCurry informed the Claimant about the general investigation prior to the Claimant raising his original concerns and he apologised for not feeding back about this one earlier, (paragraph 85). There was therefore no failure to feedback on this but a delay that had occurred prior to the first claim. 20.5. On 21 December 2018, Ms Buchan, now line manager, confirmed to the Claimant that the First Respondent was not prepared to do anything about the issues he had been escalating over the last few years, (paragraph 92). Again, therefore, the Firs Respondent told the Claimant that there would be no investigation. 20.6. In January 2019 the director of Risk and Assistance, Mr Walker, offered the Claimant a meeting with the new Head of Fraud, Mr Mulling, if he was able to share details of wrongdoing (paragraph 96), but the Claimant was unwilling or unable to do so (paragraph 97). Thus the Claimant did not progress the chance to be involved in an investigation. (This means, the Claimant will not be able to establish the facts as currently alleged at paragraph 9 of claim 3’s particulars of claim.) Overall therefore it is very obvious indeed that the First Respondent did give feedback to the Claimant that it had not investigated and did not intend to investigate his concerns.

[21]In relation to grievances, the Tribunal made the following findings of fact: 21.1. On 18 February 2014, the Claimant raised a grievance. It was heard by Mr Thomas, Head of Engineering, and was rejected. The Claimant withdrew his appeal (paragraphs 18, 19, 30 and 31). 21.2. He continued with a complaint about the time it had taken to deal with the first grievance. This was handled by Mr McCurry. It was delayed because the person it was against was on long term sick leave. Later Mr McCurry told the Claimant there was little that could be done now that the person had left (paragraph 48). Ultimately Mr McCurry wrote again in 2016 treating the matter as closed (paragraph 57). 21.3. On 20 August 2017 the Claimant raised another grievance with Ms Wright, HR Director. A manager was appointed but the Claimant wanted Ms Wright to hear it. She said she would deal with any appeal. On 23 November 2017 he asked for his grievance to be suspended. He did not take later steps to reactivate his grievance and the onus was on him to do so. On 6 February 2019 he asked Ms Buchan whether the business considered the grievance open or closed and, on Mr McMurry’s confirmation, she informed him closed (paragraphs 65, 67, 70, 74, 98 and 99).

[22]In claim 1 the Claimant raised two kinds of disability discrimination claim: a section 15 claim (being subject to detriments because of something arising in connection with his disability) and a failure to make reasonable adjustments claim. Both were rejected by the Tribunal. The Respondents raised time limit points that would have been successful (if it had been necessary to decide them) in relation to both claims. Thus, the Claimant knew about disability discrimination and Equality Act time limits.

Findings of Fact

[23]Having heard the Claimant’s evidence and having referred to the Judgment in claim 1, I make the following findings of fact.

[24]The tribunal found as a fact in claim 1 that the Claimant told Ms Buchan in November 2018 that he held Mr McCurry accountable for his state of health (paragraph 91). In his Particulars of Claim in claim 3 the Claimant alleges that he wanted to convey to Mr Walker in early 2019 how ‘whistleblowing had impacted upon my wellbeing’ (paragraph 9). The Claimant therefore had in his mind, prior to the first claim, the impact on his health of his concerns and the Respondent’s response to them.

[25]The Claimant was too unwell, for reasons relating to his disability, to continue attending the hearing of claim 1 in August 2020.

[26]On 30 November 2020 it is not disputed in the pleadings that the Claimant raised a grievance. This was about Mr Walker’s refusal to respond to the Claimant’s ongoing question about whether his concerns would be investigated. In their Response, the Respondents say this grievance was investigated by Ms Chapman, Director of Licensing, who gave the Claimant an outcome which was in summary that, in the absence of the Claimant providing detail, Mr Walker had been unable to deal with his concerns and that he had handled the matter appropriately.

[27]In his evidence to me the Claimant explained it as follows: ‘I was saying I had a grievance against Mr Walker because he wasn’t answering my questions. A lady came back to me saying you have already had our response. End of.’ Thus on the Claimant’s case he accepts he had a response from ‘a lady’ at the Respondent, who I find, given the Response, is likely to have been Ms Chapman.

[28]It is clear to me from reading the Judgment in claim 1 and hearing this evidence, that the Claimant keeps asking the Respondent about whether there were investigations to his concerns. He repeats this question to various individuals in the First Respondent. It is equally clear that the First Respondent has replied to him repeatedly that, without more detail, there will not be an investigation. When the Claimant is refused in this way, he then brings a grievance.

[29]Before Christmas 2020, and with the help of his son, he started drafting the claim that would become claim 3. He had formed an intention to present it. He told me it felt like a discrete claim, involving different people. Crossexamination in the first claim had already been completed and he thought it unlikely that he would be allowed to amend claim 1 at that stage in the hearing.

[30]The Claimant then contracted Covid in early 2021 which caused him to be hospitalised between 7-11 January 2021. His mental health was not helped by seeing patients who fared worse than he did in hospital.

[31]Nevertheless, on 21 January 2021 he was able to contact ACAS in relation to the First Respondent (40). Early Conciliation took some time: the certificate was dated 4 March 2021.

[32]Medical evidence on 3 February 2021 (153) stated he was not well enough to attend a hearing because of covid. He told his GP he had memory issues (she did not confirm those issues) and was finding it difficult to cope with his ongoing anxiety and depression. I find, at this time, his health had not prevented him from progressing through ACAS EC. The GP letter stated there was hope for him to be recovered from Covid by April.

[33]On 2 April 2021 he presented claim 3. It was rejected against the Second and Third Respondents for lack of ACAS Early Conciliation.

[34]On 8 April 2021 the Claimant started ACAS EC for the individual Respondents and it ended on 9 April 2021. Very quickly he presented claim 3201877 in the same form as claim 3 but now accepted against those respondents.

[35]For most of 2020, the Claimant’s son had helped him with his first claim, while he had been living at home. But his son moved out. He then applied to the tribunal for a ‘litigation friend’ help. He did not hear back from the Tribunal about that. He could not explain to me why he had thought the Tribunal offered such a service. Nothing on the Tribunal website or authoritative advice websites would have suggested it offered such a service. It does not do so.

[36]The Claimant did not provide up to date medical evidence to the Tribunal to seek an adjournment of the May 2021 hearing. It therefore went ahead.

[37]When asked why allegation 27(b) was not included in his first claim the Claimant blamed his health and said he had only asked about this matter in 2020.

[38]In relation to his grievance to Mr Walker he said the first hearing had raised more questions than it had answered. Legal Principles The relevant statutory provisions

[39]Section 19 Equality Act 2010 provides:(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.

(2) For the purposes of subsection (1) a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if – (a) A applies, or would apply it, to persons with whom B does not share the characteristic, (b) It puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) It puts, or would put, B to that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.

[40]Section 39(2)(b) of the Equality Act 2010 provides that an employer must not discriminate against an employee, by subjecting him to a detriment.

[41]Thus to succeed in an indirect disability discrimination case so far as is relevant here, the Claimant must prove a practice of the First Respondent, which was or would have been applied to all; and that this practice put disabled employees to a particular disadvantage when compared with nondisabled employees; and that he experienced that disadvantage; and that he was subject to a detriment by it.

[42]The Equality Act 2010 makes unlawful ‘retaliation’ by an employer against an employee raising a complaint by reference to it. This is called ‘victimisation’. Under section 27 and section 39 of the Equality Act 2010, the Claimant must show that he was subjected to a detriment by the Respondents because had had done a ‘protected act’. It is not in dispute here that the protected act was his bringing claim 1.

[43]Section 123(1) of the Equality Act provides that proceedings on a may not be brought after the end of a period of 3 months (in addition to time added by ACAS EC) or ‘such other period as the Tribunal thinks just and equitable’.

[44]Section 123(3) provides that ‘conduct extending over a period is to be treated as done at the end of the period’.

[45]Sections 123(3) and (4) provide that ‘failure to do something is to be treated as occurring when the person decided upon it’. A person is to be taken to decide on a failure to do something when he does an act inconsistent with doing it or if he does no inconsistent act, on the expiry of the period in which he might reasonably have been expected to do it.

[46]When I consider whether to extend time beyond the primary time limit in section 123(1), I must consider what is just and equitable (fair). The Claimant has the burden of persuading me. I take into account factors so far as they are relevant including: reason for and length of the delay; the merits of the claim; any impact of the delay on the cogency of evidence; the knowledge of the Claimant; the speed with which he acted once he was aware of the claim; and, importantly, the balance of prejudice.

[47]I do not find helpful the comments of Auld LJ in Robertson v Bexley Community Centre

[2003] IRLR 434

(CA) that an extension of time is the ‘exception rather than the rule’ or that the time limits are ‘strict’. I consider Sedley LJ in Chief Constable of Lincolnshire v Caston

[2010] IRLR 327

(CA is correct that these are unnecessary glosses on the statutory language. (Counsel when acting opposite a Litigant in Person should not cite Robertson without also referring the employment judge to Caston.)

[48]Rule 37(1) of the Tribunal Rules of Procedure 2013 provides that I can strike out a claim or part of a claim if(a) it has no reasonable prospect of success and/or

(b) the manner in which the proceedings have been conducted by or on behalf of the Claimant … has been … unreasonable. The Rule in Henderson v Henderson

[49]There is a long established principle that there must be finality in litigation. As part of this principle the rule in Henderson v Henderson allows the court to strike out a claim as an abuse of process where it could have been and should have been brought in earlier litigation. It has been accepted that the same principles apply in the Tribunal, presumably as part of Rule 37(b).

[50]It is not enough for the Respondents to persuade me that a claim could have been brought earlier. It must show it should have. It must also show that it is an abuse of process not to have been. The best expression in modern times is by Lord Bingham in Johnson v Gore Wood

[2002] 2 AC 1

at p30H. I have separated out this paragraph of his speech for ease of reading and give a brief explanation after it in square brackets for the Claimant’s assistance: The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. [This is the policy reason for the ‘rule’.] The bringing of a claim … in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim … should have been raised in the earlier proceedings if it was to be raised at all. [The basic test.] I would not accept that it is necessary, before abuse may be found, to identify any additional element such as collateral attack on a previous decision … but where [that element] is present the later proceedings will be much more obviously abusive, [If the third claim is a way of attacking the judgment in the first claim it is more likely to be found to be abusive.] and there will rarely be a finding of abuse unless the later proceedings involves what the court regards as unjust harassment of a party. [I must consider the effect on the Respondents of the claim and whether it is harassing.] It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, the party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. [It is not enough to say that the claims ‘could’ have been brought earlier: I must look at all the circumstances and interests.] Properly applied … the rule has in my view a valuable part to play in protecting the interests of justice. Lord Millett at page 59A observed: It is one thing to refuse to allow a party to relitigate a question which has already been decided; it is quite another to deny him the opportunity of litigating for the first time a question which has not previously been adjudicated upon. … the doctrine now under consideration can be no more than a procedural rule based on the need to protect the process of the Court from abuse and the defendant from oppression. …There is therefore only one question to be considered in the present case: whether it was oppressive or otherwise an abuse … for Mr Johnson to bring his own proceedings against the firm when he could have brought them as part of or at the same time as the Company’s action… Insofar as the rule in Henderson v Henderson suggests that there is a presumption against the bringing of successive actions, I consider that is a distortion of the true position. The burden should always rest upon the defendant to establish that it is oppressive or an abuse of process for him to be subjected to the second action. [The key question is whether this is an abuse and oppressive to the Respondents. There is not a presumption against bringing second actions.]

[51]I look at the matter up to the hearing of the first claim, not its presentation, see LB Haringey v O’Brien [

UKEAT/0004/16/LA

[52]I must consider the Claimant’s reasons for not pursuing the claim earlier. I should also consider whether the parts of the claim allowed to continue will include evidence in relation to the claim alleged to be an abuse. For both points see James v Public Health Wales NHS Trust [

UKEAT/0170/14/KN

[53]My decision must be an exercise of judgment rather than of discretion. No reasonable prospects of success

[54]I remind myself that the Rule for striking out a claim as having no reasonable prospect of success has a very high threshold. It must only be adopted in the clearest of cases, especially in the discrimination field where much usually depends on the facts and inferences to be drawn from them. But the case law allows the rule to be applied in an appropriate case: where, for example, there is incontrovertible evidence that means the case is not be possible to win. Decision on Application to Strike Out Victimisation allegation paragraph 27(b) of Particulars of Claim

[55]In my judgment, the victimisation allegation at paragraph 27(b) of the Particulars of Claim in claim 3 could have been made in claim 1 because it could have been raised in an application to amend prior to the first hearing, after disclosure. The Claimant knew all of the facts he needed to know by then. Whether there had been an investigation in January 2018 was also part of the relevant evidence of the first claim because it was part of the alleged detriment 5.8 and clear findings were made about the internal audit investigation in the Judgment of claim 1 (paragraph 70-73).

[56]The Claimant has not explained satisfactorily why this claim could not have been made in the claim 1 once he discovered after disclosure that there were no such records. He was aware of the provisions of the Equality Act 2010 and had the help of his son. I therefore consider the claim should have been brought by way of amendment, if brought as a claim at all.

[57]In my judgment allowing this allegation to go forward in a new claim oppresses and vexes the Respondents because it is effectively required to go over the same evidence again in relation to a different alleged cause. This is costly in time and money. The facts will not need be heard in the remaining parts of claim 3: it is entirely discrete.

[58]In my judgment this claim is also now an attack on the findings of the first claim: the Claimant does not appear to accept that there was no internal audit investigation. Nor does he appear to accept that he was told this. But this is just what the Tribunal has found: the Head of Fraud did not begin a fraud investigation because the Claimant did not provide him with any details and he told the Claimant this at the time, (Judgment paragraph 72). These are all findings of fact that I cannot go behind. This makes the allegation that there was a practice not to give him feedback on investigations in claim 3 much more obviously an abuse of process.

[59]If I am wrong, I would have found that this allegation should have been struck out as having no reasonable prospect of success. This is because the detriment complained of comes before the protected act (the presentation of claim 1 on 3 June 2019) and cannot therefore have been because of the protected act. A failure to keep detailed records of any fraud interview in January 2018 happened at the interview or very soon after it. This is because detailed records of such an interview can only have been made at the interview or very soon after it in order to preserve the detail before memories faded. Certainly before 3 June 2019, the date of the protected act.

[60]I would also have struck out this allegation as having no reasonable prospect of success because not keeping detailed notes in a non-existent fraud investigation cannot on any case amount to a detriment. Indirect Disability Discrimination Allegations

[61]The Respondents argue that on both PCPs should be struck out in total. If so the whole of the indirect disability discrimination claim will be struck out. PCP re grievance

[62]I deal first with the PCP of ‘consistently failing to provide resolution of grievances related to whistleblowing’.

[63]On its face, that is a practice, if it existed, about which the Claimant was aware prior to the beginning of hearing of claim 1 because the alleged failure to resolve grievances were alleged detriments 5.2 and 5.13 in claim 1, from 2014 and 2017.

[64]The Claimant had in mind prior to the presentation of the first claim that his health had suffered because of the impact of the Respondent’s conduct. The Claimant knew about disability discrimination and had included elements of it in claim 1.

[65]All the elements of this allegation therefore could have been raised in claim 1 prior to the beginning of the first hearing.

[66]I find also that this allegation should have been raised in claim 1. The Claimant could have raised this practice by way of amendment prior to the beginning of the final hearing. He would have been relying on facts raised in claim 1. By the time his second grievance was not resolved, he could have identified a practice, by which time he had been disabled and could have therefore complained that the practice put him to a disadvantage and he was subjected to a detriment by it.

[67]It is vexing and expensive to the First Respondent to be required to face proceedings in relation to this first PCP when it will be required to go over evidence of two grievances about which it has already given evidence in claim 1.

[68]I have considered the argument (albeit that it was not made to me) that it was only when the third grievance was allegedly not investigated or resolved, that the Claimant observed a practice of not doing so. If so, the Claimant could have sought to amend his claim. I accept that this would have been at a late stage but it was in relation to a discrete issue: the alleged failure to resolve his 30 November 2020 grievance, to which Ms Chapman had given allegedly short shrift. This grievance related to the same subject matter as claim 1: whether his concerns about wrongdoing had been investigated. He was able prior to Christmas 2020, to draft a claim about it. Thus, he was equally able to apply to amend claim 1. I consider, too, the Claimant should have done so: it would have been quicker and easier: rather than going through a new set of ACAS Early conciliations. It was plainly relevant to claim 1. He was as capable of doing this as he was of bringing claim 3 and there was plenty of time to do so prior to the re-start.

[69]In my judgment, the Claimant is now, through this allegation, relitigating the claims he lost in claim 1 using a different legal label. He lost his claim for unlawful detriments based on the grievances in 2014 and 2017. He is aiming to have a second bite at that cherry. It is oppressive to the Respondents for him to do so, for the reasons I have already given.

[70]I do not consider evidence of prior grievances will be necessary in the remaining claims and therefore evidence in relation to this allegation will not be necessary in any event for the remaining claims.

[71]I find that for all of these reasons the indirect discrimination claim based on the first PCP relating to grievances is an abuse and should be struck out.

[72]Given the length and prolixity of claims, it was initially hard for me to grasp the Claimant’s approach, It seems to me now clear that his third grievance is based on a repeat of his question (Have there been investigations?) to which he has already received an answer (No). This is an additional reason why this claim is an abuse of process: the Claimant could continue into infinity repeating his question, being dissatisfied with the answer, bringing a grievance about it and claiming a practice based on his dissatisfaction with the speedy closure of the grievance because he has been given answers to his question before.

[73]If I am wrong, in any event I would have struck out this claim as having no reasonable prospect of success, because of the insurmountable hurdle the Claimant has in establishing the alleged practice relating to grievances. The Tribunal found as a fact that the Claimant was given an outcome to his grievance in 2014: it was rejected. This means it was resolved. The Tribunal found it was up to the Claimant to reactivate his second grievance in 2017. He did not do so until, in February 2019, he asked whether the grievance was open or closed. The Respondent told him, in error, that it was closed. The Claimant told me at the Preliminary hearing that he did receive a response to his third grievance from a lady (likely Ms Chapman) rejecting it as a repetition. The facts therefore do not establish the alleged practice of a failure to provide resolution to grievances. There was one outcome (2014), one mistaken closure (of the suspended 2017 grievance in 2019) and one rejection. These three matters do not establish a practice of failing to provide resolution and, thus, the Claimant has no reasonable prospect of establishing the alleged PCP. PCP re investigations

[74]The second alleged PCP is a failure generally to provide feedback on the outcome of investigations. The Claimant’s further information gives examples of that alleged practice: 74.1. Point 1 of the further information is exactly the detriment he alleged at issue 5.4 in claim 1 albeit with a different legal label; 74.2. Point 2 of the further information is a specific feature of the general detriment alleged at issue 5.8 in claim 1 and the same as the detriment alleged at issue 5.1 albeit at a different time and with a different legal label; 74.3. The facts of point 3 of the further information arose before the presentation of claim 1. They are dealt with at paragraph 98 of the Judgment, so were part of the evidence in claim 1. 74.4. Point 4 of the further information is a repeat of the questions already asked of the First Respondent by the Claimant and complained about in the first claim. This is a discrete point. It is, at its highest, an example of what the Claimant alleged had already become a practice. 74.5. Point 5 is not currently proper further information, the Claimant has not applied to amend and I do not deal with it.

[75]In my judgment, the Claimant had observed three alleged examples of a refusal to give information about investigations before he presented his first claim. Before the first claim, he knew his health was being impacted by the conduct of the Respondents that he complained about. He could therefore have made this allegation in claim 1.

[76]In my judgment, the Claimant should have made this allegation in claim 1. I repeat that he knew the alleged facts upon which the claim is based. The pattern had been established, in the Claimant’s view (albeit as I set out below, not in fact) that the First Respondent had set its face against telling him what was going on in relation to investigations. He knew it was having an impact on his health. Those are the makings of an indirect disability discrimination claim. The Claimant had claimed two kinds of disability discrimination in claim 1: he was therefore aware of the Equality Act scheme. If he had wanted to run these complaints as an alternative indirect disability discrimination argument then he should have done so at the time the evidence was being considered. This claim should have been raised with all of his other claims at the same time so as to save time and expense for both him, the Respondents and the administration of justice. What the Claimant is now doing is effectively saying, ‘Ok I’ve lost on the original grounds, but here are some alternative arguments.’ It is oppressive to do so in the circumstances of this case. It harasses the Respondents to do so and costs the Tribunal and therefore the public further expense. It is classically an abuse of the kind in Henderson v Henderson and under Rule 37(1)(b) it is unreasonable conduct of a claim.

[77]I deal with Miss Thomas’ further submission on the 2015 incident. The Claimant could argue that the 2015 example is evidence of the practice (‘the PCP’), even though he was not yet disabled. (Though given the Tribunal’s finding that this failure was an oversight, it would be hard to establish a practice from it.) What he could not do, if he established the PCP in this claim, is argue that the 2015 incident placed him at a comparative disadvantage, because he was not yet a disabled person.

[78]If I am wrong about this as an abuse of process, I would have struck out this claim as having no reasonable prospect of success for the simple reason that the Claimant will certainly not be able to establish a failure to give feedback on the outcome of investigations. This is again one of those unusual discrimination claims that can be struck out at an early stage because there are irrefutable facts that mean it cannot succeed.

[79]The Claimant tells me that he sees a ‘cover up’ in the absence of records about investigations of his concerns. But it is clear from the Judgment that there were no investigations of his concerns, thus obviously there would be no records. His claim about not being given feedback on investigations therefore hangs upon nothing at all. Further, the Claimant has not been kept in the dark about the fact of no investigations. It is very clear in the Judgment that the Claimant was told his concerns would not be investigated. It cannot be a disadvantage or a detriment not to be given feedback on investigations that did not happen when you were told they were not going to happen. If the First Respondent now refuses to respond to the Claimant’s repeated questions, that is no surprise and perfectly reasonable. It is an abuse of process to generate a new claim by repeating the question about investigations to new personnel in the First Respondent. Sometimes persistence is admirable: here it is oppressive and misconceived.

[80]I am concerned whether the Claimant has understood that it has been decided that he was not a whistle-blower in the legal sense. I urge him to read the Judgment and this one carefully to understand the legal difficulties in his approach. Time Limits - Claims Against Individual Respondents

[81]I go on to consider whether all of the claims have been brought out of time against the Second and Third Respondents, Mr Walker and Mr Carter.

[82]The claim against the individual Respondents was presented on 10 April 2021. Early Conciliation took place between 8 and 9 April 2021. Adding the primary time limit to the time for Early Conciliation means that a claim about any act or failure before 10 January 2021 is out of time.

[83]The latest complaint against Mr Walker relates to his letter dated 22 October 2020 in which he told the Claimant that he had made it clear it was not possible to investigate the matter. Thus the claim is 80 days out of time (around 11 weeks).

[84]The latest complaint against Mr Carter relates to an alleged failure to investigate the grievance against Mr Walker dated 30 November. The Respondent states that at the last Preliminary Hearing the Claimant accepted that this shortcoming took place before the end of 2020. This makes sense in that a failure is taken to occur when action inconsistent with it ought reasonably to have taken place. A month for this relatively brief grievance is a reasonable amount of time within which to expect a response. Thus the claim against Mr Carter is about 10 days out of time.

[85]The victimisation claims against the individual respondents are of individual acts or omissions. They are not acts extending over a period.

[86]The burden is on the Claimant to persuade me to extend time. He was aware of the time limits. He had drafted a claim by the end of 2020. He should have started Early Conciliation in relation to Mr Walker by 21 January 2021. I take into account that he was in hospital but his ill health did not mean he was unable to start Early Conciliation (he did so against the First Respondent). I cannot find that it was a factor in the delay.

[87]In relation to Mr Walker, the delay in presenting the claim was significant.

[88]Finally, the balance of prejudice is against an extension in Mr Walker’s case in that the Claimant still has his claim against the First Respondent, whereas Mr Walker will be put to the much more onerous work of being an individual respondent in the case rather than a witness.

[89]Weighing up those factors they point away from it being fair to extend time. In my judgement it is not just and equitable to extend time to allow the claim against Mr Walker, the Second Respondent.

[90]In relation to Mr Carter, the delay is much shorter, being ten days. But I can only extend time if I consider it just and equitable to do so and I have concluded that it is not. The Claimant was aware of his claim within time and had prepared it. He was able to take action despite his illness in relation to the First Respondent and could have done in relation to Mr Carter. The claim against Mr Carter appears to me to be weak, given that it is obvious, even on what the Claimant says, that Mr Carter must have taken action and passed his grievance to a ‘lady’ (Ms Chapman) who responded to him, appropriately in my view. There are no countervailing factors in favour of extending time. Finally the balance of prejudice is against an extension in that the Claimant still has his claim against the First Respondent whereas Mr Carter will be put to the much more onerous work of being an individual respondent in the case rather than a witness.

[91]Weighing up those factors I also consider that they weigh more heavily against extending time. I find that it is not just and equitable to extend time to allow the claim against Mr Carter, the Third Respondent. Time Limits - Claims Against Individual Respondents

[92]Any act or omission before the 22 October 2020 is out of time. This means that all the remaining victimisation claims against the First Respondent are in time. Even paragraph 2(b) of the Particulars of Claim is in time because it is about the response to the letter of 13 October, which response was on 22 October 2020. Therefore I do not strike out the victimisation claims against the First Respondent. Further Case Management of Claims 2, 3 and Claim 4

[93]It does not appear that there has been any dismissal judgment in relation to the failure to make reasonable adjustments allegation in claim 3. The Claimant withdrew this allegation at the Preliminary Hearing before EJ Reed. Rule 52 requires the Tribunal to issue a judgment dismissing it. I have included this in my judgment.

[94]Now that I am familiar with the claims and the Judgment in claim 1, I have considered claim 2, the remaining victimisation claims in claim 3, and claim 4. On my own initiative, I (or another judge) will consider the following issues at the next Preliminary Hearing (in public): 94.1. whether claims 2, 3 and 4 or any part of them should be struck out as having no prospect of success; or 94.2. whether deposit/s should be paid as a condition of continuing with claims 2, 3 or 4 or any allegation within them.

[95]The Claimant will find information about deposits orders at Rule 39 of the Employment Tribunal Rules of Procedure at this link: https://www.gov.uk/government/publications/employment-tribunalprocedure-rules If a judge considers any allegation has little prospects of success, then they can consider whether the Claimant ought to pay a deposit as a condition of continuing with that claim. If a deposit order is made and paid, there is a costs risk in continuing because, if the Claimant loses the claim for substantially the reasons given in the deposit order, then he will be treated as having acted unreasonably and risks having to pay Respondent’s costs of defending that part of the claim.

[96]I have not reached any conclusion on these points but, to give examples, it seems to me there are real questions: 96.1. whether the unlawful deduction of wages claim has any prospect of success if it was to repay an overpayment. I referred the Claimant to section 14 of the Employment Rights Act 1996; 96.2. whether the responses to the Claimant’s repeated question and grievances can be said to be inappropriate or a detriment; 96.3. whether a failure to investigate wrongdoing and/or refer the matter to a regulatory body can amount to a detriment where the allegation of wrongdoing has been found not to be a protected disclosure; 96.4. whether, the failure to grant special leave, amounted to a detriment.

[97]I have made other case management orders of my own motion in order that the hearing is effective. These are set out in a separate order.

[1]The Respondent applies for an order that the Claimant pay the costs of hearing preparation and attendance in relation to the preliminary hearing (in public) on 22 February 2023. Procedural History

[2]For the procedural history of this case I refer to the Judgment sent to the parties dismissing the claims upon withdrawal (‘the Dismissal Judgment’) and my judgment of November 2022 in which I struck out parts of the claims (the November 2022 Judgment) and the Order sent to the parties on 24 February 2023. (I dismissed the claims against the Fourth Respondent on 22 February 2023 at the hearing.)

[3]Written notice of the hearing on 22 February 2023 was sent to the parties on 1 December 2022. It was listed orally at the hearing on 17 November 2022. The issues at the 22 February 2023 hearing included to consider whether claims 2, 3 and 4 or any part of them should be struck out as having no prospect of success; or whether deposit/s should be paid as a condition of continuing with claims 2, 3 or 4 or any allegation within them (see paragraphs 94-97 of the November 2022 Judgment); and to make case management orders to prepare the claims for the 5 day final hearing listed to begin on 2 May 2023.

[4]Also in November made Case Management Orders to ensure that the 22 February 2023 hearing was effective Order’). These orders included that the Claimant should provide a statement of his means by 15 March 2022. This was a typographical error, given that means may have been one of the matters I had to consider at the February 2023 hearing. I corrected this error in correspondence in early February 2022. It was varied so that the Claimant was ordered to send a statement of his means no later than 48 hours before the hearing.

[5]I described, in the February 2023 Order, the adjournment applications the Claimant had made prior to the February 2023 hearing, all of which were refused: 5.1. On 14 December 2022, the Claimant had applied to postpone the final hearing [in May] for various reasons including that he intended to make a new claim or an application to amend (not yet particularised) and his fear that he may not be well enough because of the need to prepare for another hearing in April 2023. By letter on 6 January 2023 I refused that application with reasons. The claims are already much delayed and I was concerned at the serious risk of injustice if the claims were postponed any further. The possibility of future claims or applications to amend was, in my view, an insufficient reason to postpone. 5.2. On 20 February 2023 (2 days before this hearing), the Claimant applied to adjourn proceedings primarily because of his representations to the statutory regulator. This application was refused by Acting Regional Judge Burgher on the same day. While the Claimant referred in general terms to ‘wellbeing’ in this application, he did not provide any medical evidence or state that he was too unwell at present to pursue his claims. 5.3. The wider context is that the Claimant is disabled by reason of depression and anxiety. His first claim against the First Respondent was heard at a full hearing and determined. The Claimant was too unwell at one point to take part in that hearing and provided medical evidence to support a postponement of it and to extend that postponement. He did not provide evidence beyond a certain point [and] the Tribunal heard the claim in his absence. He is well aware that he must provide clear medical evidence to justify a postponement. 5.4. The Claimant had returned to work, until his resignation on 23 January 2023. 5.5. The Claimant sought a reconsideration of AREJ Burgher’s decision on 21 February 2023. He relied on issues about disclosure and ‘that it would be unfair given my circumstances of my deteriorating health…. to go ahead tomorrow’. He said a postponement would be a reasonable adjustment. He did not provide any medical evidence or describe his health any further. This request for reconsideration was refused by AREJ Burgher on the same day at 15.11. (Emphasis added.)

[6]I note that, because these applications for postponement were made less than 7 days before the hearing, Rule 30A of the Tribunal Rules required the Claimant to show there were ‘exceptional circumstances’ justifying them.

[7]In an email on 17.07 on 21 February 2023, the very end of the day before the hearing, the Claimant withdrew all of his claims ‘for health reasons’. He stated the hearing ‘could be vacated’. He referred to Rules 51 and 52 and stated he wished to ‘reserve his right to bring another claim’ against the First Respondent. I dismissed the claims against the Fourth Respondent upon withdrawal that day. But before deciding whether to dismiss the claims against the First Respondent, I ordered that the Claimant provide more information about this intended new claim. I gave reasons in the February 2023 Order for doing so. After he explained his position, I gave judgment dismissing the claims on withdrawal. The Claimant again referred to his poor health as the reason for withdrawal. Costs Application

[8]The Respondents made a costs application on 1 March 2023 respect of the fees incurred by the Respondent in preparing for and attending the preliminary hearing which took place on 22 February 2023 (“the PH”). The Claimant responded to it on 6 March 2023.

[10]After some delay due to the wrong address being used for the Claimant, it is now possible for me to address the costs application. Submissions

[11]The Respondent argues that the Claimant acted unreasonably in the way he has conducted the proceedings. They seek costs under Rule 76(1)(a) of the Tribunal Rules 2013. The Respondent submits: 11.1. from the procedural history, the Claimant understood he needs to provide medical evidence to justify a postponement. It argues that the Claimant did not even describe in any detail his health problems; 11.2. the Tribunal had already decided that the Claimant’s disclosure request would be dealt with as part of the preliminary hearing; 11.3. the withdrawal was so late that the Respondent had already incurred costs in preparing for the preliminary hearing; 11.4. the withdrawal of 21 February 2023 was ambiguous, because the Claimant stated he reserved the right to bring another claim, therefore Counsel attended.

[12]The Claimant makes the following points in response: 12.1. He alleges that after 17 November 2022 and prior to his resignation on 23 January 2023 the Respondent’s conduct led him to resign. He believes this conduct, which he does not describe, was designed to cause his health to suffer and ultimately to lead to a withdrawal. He says, ‘It was due to a rapidly deteriorating health situation brought about by the Respondent that I decided to withdraw.’ 12.2. He argues that even if he had been well enough to attend the February hearing, he ‘had the option to request judicial mediation’ and this would have put the Respondent to similar costs as are now being sought. 12.3. He suggests that the Tribunal could order production of his medical records which would reveal the Respondent’s conduct. 12.4. He suggests that the Respondent is a large publicly funded organisation and the costs are therefore of little value to them.

Legal Principles

[13]Rule 76 provides that: A tribunal may make a custom order and shall consider whether to do so where it considers that (a) a party has acted… Unreasonably… In the way that the proceedings (or part) have been conducted. Unreasonably is given its natural meaning. I should bear in mind the context, and not hold litigants in person to the same standards as a professional representative.

[14]Rule 74 provides that no order shall be made unless the paying party has had a reasonable opportunity to make representations in response to the application.

[15]Costs means ‘fees, charges etc’ incurred by or on behalf of the receiving party.

[16]Rule 84 provides that I may have regard to the paying party’s ability to pay: In deciding whether to make a costs … order, and if so in what amount, the Tribunal may have regard to the paying party's … ability to pay.

[17]Thus, if I consider there has been unreasonable conduct, I may make a costs order but I do not have to do so. I must consider whether to exercise the discretion to do so. In doing so, I may take into account a party’s ability to pay. Further, in considering the amount of any award I may consider a party’s ability to pay. If I do not take it into account I should explain why.

[18]I bear in mind the principle set out In Gee -v- Shell UK Limited

[2003] IRLR 82

. Sedley LJ said: It is nevertheless a very important feature of the employment jurisdiction that it is designed to be accessible to ordinary people without the need of lawyers and that in sharp distinction from ordinary litigation in the United Kingdom losing does not ordinarily mean paying the other side’s costs.

[19]In McPherson v BNP Paribas (London Branch)

[2004] IRLR 558

an application for costs followed a withdrawal by a claimant. Mummery LJ made the following points in his judgment: 19.1. at paragraph 28, that it would be unfortunate if we had a regime as to costs whereby claimants who withdrew would automatically face an order for costs, thus discouraging anybody from ever withdrawing. 19.2. at paragraph 29, that on the other hand, tribunals ought not to adopt a practice which encourages speculative claims, only for them to be withdrawn in the last week or two before the hearing, when no offer of settlement has been made. 19.3. and at paragraph 30, The solution lies in the proper construction and sensible application of Rule 14 (as it then was). The crucial question is whether in all the circumstances of the case the claimant withdrawing the claim has conducted the proceedings unreasonably. It is not whether the withdrawal of the claim in itself is unreasonable”. Application of Legal Principles Was there unreasonable conduct?

[20]First, I must consider whether the Claimant has acted unreasonably in the way that he conducted this part of the proceedings. There are arguments on both sides.

[21]I keep at the forefront of my assessment, the very important principle that costs do not generally follow the event in Tribunals as explained in Gee. I should not lose sight of this principle when considering a particular application. The Respondent must persuade me that the Claimant has conducted the claims or part of them unreasonably. This means more than unwisely. I should consider all of the circumstances of the withdrawal, what I know of the Claimant and his circumstances, before applying the test.

[22]I take the following factors into account: 22.1. the Respondent is right to centre its argument on the last-minute nature of the withdrawal, after efforts to postpone had failed, rather than the withdrawal itself. It is the last-minute nature of the withdrawal that put them to cost: the bulk of the preparation being the few days before the hearing. The Claimant knew about the hearing and the issues well in advance, giving him good time to consider his position, a withdrawal so late in the day is a factor pointing to unreasonable conduct; 22.2. the Claimant only withdrew after his very late applications to postpone had failed. The first of those applications made two days before the hearing was not made on the basis of ill health but a submission about the regulator. At this stage the Claimant appeared to want to go ahead with his claims. He has not explained why, within 48 hours, that view changed except by a very general reference to deteriorating health; 22.3. even now that the Claimant has referred to his deteriorating health as the reason for the withdrawal, he has made no attempt to describe his difficulties and has not provided the Tribunal with any supporting evidence. His disability is anxiety and depression, and it is probably reasonable for me to assume that the deterioration has been in relation to mental health. But as to the nature and speed of the deterioration what information I do have does not suggest a very sudden decline. On the Claimant’s own case the deterioration was bad enough for him to resign from work a month before the hearing on 23 January 2023. There is nothing in the Claimant’s response to this application that enables me to find that the deterioration was so fast that it explains the lateness of the withdrawal; 22.4. I take into account that the Claimant is a litigant in person and do not hold him to the higher standard of a professional representative. I have made a careful attempt at empathy here (while recognising the limitations of the judicial viewpoint). I have put myself in his shoes on the information he has given me and the procedural history. I draw two points from this: 22.4.1. The Claimant has more experience than most litigants in person of Tribunal litigation through pursuing claim 1 to a lengthy hearing. He knew from that claim that, once his ill health was no longer evidenced by medical evidence, the Tribunal heard the last few days of that claim in his absence. Yet he has not provided the Tribunal with any supporting medical evidence of his decline. 22.4.2. The Claimant is an intelligent, able person not confused by Tribunal proceedings. He was well able to correspond with the Tribunal until the last day before the hearing. He made coherent submissions in writing. He has put his case on his own behalf well and with persistence. I saw him do so at the November 2022 hearing. The Claimant knows about the Tribunal Rules. His withdrawal email shows that he had informed himself about Rules 51 and 52. I realise that corresponding and attending require different effort, but my point here is that the Claimant is not to be taken as entirely without experience of the Tribunal process.

[23]I conclude that, in withdrawing the claims so late in the day before the 22 February 2023 hearing, the Claimant acted unreasonably. I have applied the standard of a reasonable litigant in person. I conclude that such a late withdrawal was unreasonable because there was plenty of time for the Claimant to decide what to do once he had notice of the hearing and after the deterioration in his health leading to his resignation. Instead the Claimant corresponded with the Tribunal and Respondent as if he intended to continue with his claims and there is insufficient information before me that would reasonably justify such a late withdrawal. I find that anyone, even if not a lawyer, would appreciate that the other party would have had to prepare for a hearing before 5pm the day before. It was unreasonable of the Claimant to leave his withdrawal so late. Whether to exercise discretion

[24]Now that I have found the Claimant to have conducted a part of the claims unreasonably, I must consider whether to exercise my discretion to award costs.

[25]That the Respondent is a publicly funded body does not help the Claimant. I disagree with his argument that somehow these costs are less important to it because it is a large publicly funded body. To the contrary, the Respondent must be prudent in its spending because it is funded by the public. I regard this as a neutral factor.

[26]The Respondent has been reasonable in confining its application only to the costs, unnecessarily incurred, for the February 2023 hearing. Plainly overall the withdrawal will save it further cost, but the point here is that their preparation costs for the February hearing could have been saved had the Claimant acted reasonably and withdrawn earlier.

[27]The Claimant did not comply with the order to provide information about his means. He has not volunteered information about his means in his response to the costs application. He has had, therefore, two opportunities to provide the Tribunal with information about his ability to pay. It is not therefore necessary, in my judgment, in the interest of justice to provide him with a third opportunity. I take into account that he has worked as an engineer for around 15 years with the Respondent and is likely therefore to have built up some savings or capital in that time.

[28]I have also taken into account that the Claimant is disabled and has indicated a deterioration in his health. This is the most weighty reason against exercising my discretion and I have thought about it carefully. I recognise that litigating for oneself is a stressful activity, even more so when disabled by mental ill health. I realise too that the Claimant had to make a difficult decision about whether to continue the claims had had pursued with energy until February 2023 or not to do so. The deadline of another hearing can really focus the mind. Against that I see that he was appearing to pursue his claims right up until the last moment and only when his last-minute application to postpone had not succeeded did he withdraw. This shows me that he was addressing himself to his cases with some vigour and that he was thinking strategically. Overall, while it is not an easy balance to reach, I do not consider that the Claimant’s poor mental health in this context can excuse the unreasonableness of his conduct in withdrawing so late which inevitably put the Respondent to further cost.

[29]I therefore exercise my discretion to award costs in relation to the preparation of the 22 February 2023 hearing. Amount of Costs

[30]The Respondent’s schedule of costs totals £4,490 plus VAT.

[31]The Respondent says it has incurred legal fees of £1,872 in preparing counsel’s brief, finalising and producing bundles. The solicitor’s rate is £240 per hour plus VAT. This equates to 7.8 hours of her time. I take into account that I gave directions that the bundle for the November 2022 could be added to for the February 2023 hearing, to limit costs of preparation. A wholly new bundle should not have been prepared. Further, the production of bundles ought reasonably to have been dealt with by a paralegal or far more junior fee earner, overseen by the solicitor. Counsel was familiar with the issues in the claims, it seems to me therefore preparation of the brief would not have been at all time-consuming and straightforward. Overall the work could have been overseen in 2 hours by the solicitor and the remaining hours of preparation completed at much lower cost. On a rough and ready assessment I would allow £1,200.00 plus VAT for the solicitor’s preparatory work.

[32]I agree that counsel’s fee of £1,250.00 plus VAT is reasonable: this was a preliminary hearing likely to last all day in relation to claims that were legally and factually complex. At the hearing, the Respondent hoped to persuade the Tribunal to strike out all or part of the claims and, in any event, to clarify the issues in them. It was therefore a very important hearing, which would have involved several hours of careful preparation in advance, plus the day in Tribunal, justifying such a brief fee. This fee was incurred despite the Claimant’s last-minute withdrawal and Ms Thomas assisted me on the day in figuring out the way head, given the Claimant’s wording of his withdrawal.

[33]The Respondent claims the costs of applying for costs: I do not know whether they corresponded in advance seeking costs from the Claimant to avoid the application. Further, the costs application could have been made orally at the February hearing. In those circumstances I do not allow this cost.

[34]I do not allow the costs of responding to the postponement applications: my decision is that the unreasonable conduct was in relation to the lastminute withdrawal only.

[35]The costs I regard as reasonable are therefore £2,450 plus VAT equalling £490, a total of £2,940.00.

[36]I have gone on to consider the Claimant’s ability to pay. On the limited information available to me I consider that his professional position over a long period of time will have allowed him to build up sufficient savings or capital to afford these costs.

[37]I order the Claimant to pay to the Respondent’s costs of £2,940.00.

Legal Principles

[1]In a judgment sent to the parties on 12 May 2023, the claimant was ordered to pay to the respondent £2,940 in respect of costs because, in my judgment, he had acted unreasonably in withdrawing his claims at 17:07, the day before the hearing of 23 February 2023.

[2]On 26 May 2023, in an email to the tribunal, the claimant applied to reconsider that judgment. The application was not forwarded to me and the error was only discovered when the Employment Appeal Tribunal asked for an update in relation to it on 6 November 2023. (On that date it was forwarded to me. I drafted this judgment on the first day upon which I could see the file, 21 November 2023. It was sent back from typing on 1 December 2023.) Legal principles on reconsideration

[3]Under Rule 70 of the Employment Tribunals Rules of Procedure 2013, a judgment, including one about costs, will only be reconsidered where it is necessary in the interests of justice to do so.

[4]Under Rule 72 of the Tribunal Rules, if the Employment Judge considers the application has “no reasonable prospects of success”, she shall refuse the application and inform the parties, otherwise the tribunal shall send a notice setting out the timetable for response.

[5]In considering the interests of justice, the tribunal must be guided by principles of natural justice and fairness and give effect to the overriding objective at Rule 2 of the Tribunal Rules, including:5.1 ensuring the parties are on an equal footing;

5.2 dealing with cases in ways that are proportionate to the complexity and importance of the issues;

5.3 voiding unnecessary formality and seeking flexibility;

5.4 avoiding delay so far as compatible with proper consideration of the issues; and

5.5 saving expense.

claims.

[6]The discretion to act in the interests of justice is not open-ended: it should be exercised in a principled way. In particular, the finality of litigation is an important principle of justice. It is necessary for the efficient administration of justice, the saving of expense and time, and to be fair to those waiting for their cases to be heard. A party cannot raise a point after judgement that he could have reasonably argued earlier. Nor can he use the judgment as a starting point from which to make further arguments.

[7]The principles as to when fresh evidence can be considered were set out in Ladd v Marshall [1954] EWCA Civ. 1 so as to balance the principle of finality against the needs of justice in the individual case. First, it must be shown that the new evidence could not have been obtained with reasonable diligence for the original hearing; second, the evidence must be such that if given it would probably have an important influence on the result of the case, though it need not be decisive and third, the evidence must be such as it is presumably to be believed or in other words it must be apparently credible, though it need not be incontrovertible. Analysis

[8]I shall refer to the paragraph numbers of the claimant’s application dated 26 May 2023. Paragraphs 1 to 5 are background.

[10]Paragraph 6: it does not seem to me on reviewing the file that any of the documents the claimant states are outstanding were relevant to the costs decision I had to make in May 2023. My reference to his correct address and the delay in making my decision, was to ensure that the application for costs had been sent to the Claimant and that he had had an opportunity to respond.

[11]Paragraph 8: there is no presumption that an application for disclosure will be dealt with before a strike out application. Indeed in general a strike out decision is made on the Claimant’s case at its highest not on a review of the primary documents. In any event, that application went to the issues at the hearing: the Claimant withdrew from that hearing. The costs decision is not about the withdrawal itself but the timing of it. This, therefore, is not a good reason for it to be in the interests of justice to reconsider the cost decision. In any event, it was fair for the tribunal to decide that the disclosure application would be dealt with at the planned hearing on 23 February 2023 rather than before it.

[12]Paragraphs 9 and 10: I refer to the November 2022 judgment. This judgment explains in detail that the claimant’s understanding that there had been investigations was incorrect. I gave the claimant no advice as alleged in paragraphs 9 and 10. In any event, the claimant withdrew his claims. He was not in relation to the actions I was considering, seeking a postponement on this ground for the alleged exceptional circumstances he sets out. These paragraphs do not therefore put forward arguments that have any prospect of success in establishing that it is in the interests of justice to reconsider the costs decision.

Legal Principles

[13]Paragraph 11: The conduct that I regarded as unreasonable was withdrawing the claim so late, at 17:07, the night before the hearing. By then counsel had been briefed and had no doubt done significant preparation and all of the solicitor’s preparation will have been completed. Thus, the element of costs that I allowed had been expended by the time the Claimant withdrew and arguments about who should have attended on the morning of the tribunal are irrelevant and have no prospect of establishing it is in the interests of justice to reconsider the costs decision.

[14]Paragraphs 12 and 13: These paragraphs contain information that I did not have before me at the time I made the decision, but that could reasonably have been put before me and therefore, in accordance with Ladd vs Marshall, it is not in the interests of justice to consider them.

[15]Paragraph 15: costs were not awarded for the withdrawal, costs were awarded because I judged that the late withdrawal was unreasonable. It was only the costs incurred by that late withdrawal that were ordered. The question was not therefore the question the claimant poses at paragraph 15. The Claimant has no reasonable prospect of establishing it is in the interests of justice to reconsider the costs decision on this ground. Paragraph 16: see above.

[17]Paragraph 17: this was not information that the claimant had put before me and in any event, it was not relevant to whether or not his late withdrawal was unreasonable. The Claimant has no reasonable prospect of establishing it is in the interests of justice to reconsider the costs decision on this ground.

[18]Paragraph 18: the question of whether or not the claimant could obtain medical evidence went to the question of his applications to postpone. The issue I was dealing with was his late withdrawal of claims, not whether or not he could be allowed to postpone. Thus, the argument set out at paragraph 18 has no reasonable prospect of success of establishing that it is in the interests of justice to reconsider the costs decision.

[19]Paragraph 19: whether or not the tribunal office refers the claims to the statutory regulator is not relevant to the issue of late withdrawal and there are no reasonable prospects of persuading the Tribunal that it should reconsider the costs award on this basis.

Conclusion

[20]In my judgment, for all of those reasons the application to reconsider the judgment has no reasonable prospect of success and I refuse it.