Mr J Johnson v London Borough of Barnet and Others: 3300062/2024 and Others
EMPLOYMENT TRIBUNALS
Case No 3300062/2024
Between
Mr J JohnsonClaimantLondon Borough of Barnet & Others RECORD OF A PRELIMINARY HEARINGRespondent
Before
Employment Judge AndersonIn person for claimantMr Bishop (instructed by Counsel) for respondentDate 28 May 2025
JUDGMENT
[1]The Claimant’s claims of disability discrimination in the form of indirect discrimination and a failure to make reasonable adjustments are struck out under Rule 38(1)(b) and Rule 38(1)(C) of the Employment Tribunal Rules of Procedure 2024.[2]The applications for strike out under Rule 38(1)(a) of the Employment Tribunal Rules of Procedure 2024 succeed in part. The following claims are struck out as having no reasonable prospect of success:a. Whistleblowing detriment as set out at para 4.1.11 of the list of issuesb. Direct sex discrimination as set out at para 7.2.11 of the list of issuesc. All claims of indirect sex discrimination as set out at para 8.1.1, para 8.1.2 and para 8.1.3 of the list of issues.d. Harassment related to sex as set out at para 10.1.11 of the list of issuese. Victimisation as set out at para 11.2.11 of the list of issues.[3]All other applications for strike out are refused and no other claims are struck out. Separate documents have been prepared relating to Deposit Orders and Case Management Orders.
REASONS
[1]These are the reasons for my Reserved Judgment following the Public Preliminary Hearing that took place on the 24th February 2025.[2]The length and size of this Judgment has been dictated by the sheer range and volume of issues before me. This in turn was dictated by the range and number of claims that had been made.[3]The Public Preliminary Hearing was ordered to determine:a. Whether the Claimant was a disabled person for the purposes of s.6 Equality Act 2010?b. Whether any claim should be struck out under Rule 38.c. Whether any deposit order should be made on the grounds that a claim has little reasonable prospects of success as provided for in Rule 40.[4]The basic background facts are that the Claimant commenced employment in July 2023 as a Residential Homes Manager in a children’s home. He was dismissed on 14th February 2024.[5]There was a previous Private Preliminary Hearing before EJ Partington on the 9th September 2024. Case Management Orders were made and a list of issues created.[6]On the 9th December 2024 EJ Quill made further Case Management Orders on paper. These Orders were issued as the Respondents had informed the Tribunal that the Case Management Orders of EJ Partington had not been complied with. The Orders of EJ Quill covered a number of points and should be read in full. However, they provided for the possibility of strike out of the disability claim being considered at the hearing listed for today due to non compliance with orders. This was therefore an additional issue before me today.[7]I was considering the following case numbers today: Case Number Parties 3300062/2024 Mr J Johnson v Briggite Jordan, Owen Chiguvare, Chris Munday, Barnet Council London Borough of Barnet, Hannah Richens 3300063/2024 Mr J Johnson v John Hooton 3302204/2024 Mr J Johnson v Briggite Jordan, Owen Chiguvare, Chris Munday, Barnet Council London Borough of Barnet, Hannah Richens 3302206/2024 Mr J Johnson v John Hooton, Marlene Mcloud, Julia Altman, Mahan Vandana, Tina McElligot 3303920/2024 Mr J Johnson v Craig Miller 3303157/2024 Mr J Johnson v Julia Duncan, Barnet Council[8]In addition, the Case Management Orders of EJ Quill dated 9th December 2024 also provided for the possibility of my considering 3300471/2024 Mr J Johnson v Barnet Council, Hannah Richens, Marlene Mcloud. I decided that I would consider this case today alongside the other cases and that it was in accordance with the overriding objective to do so. Procedural Matters[9]It is necessary to record a number of procedural points.[10]The hearing today took place by way of video.[11]There was an electronic bundle of 772 pages plus an index. There was a separate bundle, described as the ‘investigation bundle’. I did not read the investigation bundle, save where I was specifically referred to it. Both parties had produced written submissions for today, which I have read in full. In an email sent over the weekend, the Claimant attached some additional documents. I looked at these and they appeared to be in the bundle.[12]The hearing was listed for three days. At the outset of the hearing today, the Claimant informed me that he would be attending only for the first day. He said that the reason for this was his health. The Claimant referred back to other fit notes. There was no medical evidence in respect of this. At the start of the day the Claimant said that the medical evidence would be arriving during the day. At the end of the day the Claimant was asked about this again and no medical evidence was provided.[13]The effect of this is that it was necessary for me to actively case manage the hearing to ensure that submissions were completed by the end of the first day with subsequent hearing time allocated to writing up.[14]Mindful of the background to this case, I nonetheless offered breaks to the parties during the hearing and had in mind the Equal Treatment Bench Book. Beyond the Claimant’s position regarding the length of the hearing, no specific adjustments were requested.[15]At the end of the hearing, I did suggest to the parties that we return on the third day for me to deliver my judgment and then to make case management orders in the event the claim continued. The Claimant did not agree to this. Again, I took the view that I could impose the requirement to attend given the three day listing, but decided that given the Claimant’s stated intention and given the likely need for written reasons that I would reserve Judgment.[16]During the course of the hearing, I sought to achieve the Claimants effective participation in the hearing. At times, the Claimant was polite and did engage. . At times, I sought to help him by trying to get him to focus on the points that had been made by the Respondents and to reply to those points. I also decided on other occasions to simply allow the Claimant to speak rather than to focus his submissions. The Claimant was able to use the list of issues as a structure.[17]I also take this opportunity to record my approach to the Claimant referring to there being outstanding appeals against the previous Case Management Orders.. I have seen two notice of appeal documents in the bundle. It is not my role to second-guess the EAT and it will be for the EAT to deal with those appeals. I did read the notices in order to understand whether there was a particular point or compartmentalise the point, however the ground was broad and I therefore record the fact of the appeals. The Applications[18]The first application made on behalf of the Respondents was to strike out the Claimant’s claim in respect of disability as the Claimant had a) acted unreasonably and b) was in breach of the Tribunal orders in respect of disclosure and the provision of a disability impact statement.[19]On 9th September 2024, a Private Preliminary Hearing was held. EJ Partington identified the issues and[20]On the 9th December 2024, EJ Quill made a number of Case Management Orders in light of the non compliance by the Claimant with the Orders of EJ Partington. These Orders need to be read in full. They include provision[21]The Second point was if the disability claim was not struck out then it should be dismissed as the Claimant had not discharged his burden of proof to prove that he is a disabled person for the purposes of s.6 Equality Act 2010.[22]Mr Bishop on behalf of the Respondents took me through the section 6 test and identified why each element was not met.[23]The Claimant’s position was that the fit notes provided proved that he was a disabled person.[24]The Third matter was the applications made on behalf of all named Respondents for strike out under Rule 38 and Deposit Orders under Rule 40.[25]The Respondents drew my attention to a number of previous Employment Tribunal decisions. These are public documents and are admissible before me.[26]The Claimant’s position was that he was not here to talk about previous cases. He also referred to having made previous complaints about Judges and therefore I could not rely on what was said.[27]These cases involve different parties to the present case. The fact that someone has been involved in previous litigation would not in and of itself be a matter of particular relevance in the majority of cases.[28]The Respondent’s summary is at page 711 of the bundle. On the face of it, it appears to be an accurate summary of the cases the Respondents have drawn to my attention.[29]I note and record that in one case, the one case that featured an unlawful deduction from wages, the Claimant was successful.[30]The Respondents make the point that there may be additional cases that they are not aware of. They do not suggest it is a complete list.[31]In submissions, my attention was drawn to the following specific points:a. In Johnson v Harrow Club & Others 2204796/2021 paragraph 33 onwards references previous cases the Claimant has been involved in.b. At para 14 of the Oxford Kilburn Youth Trust case at para 14: “[The Claimant] went on to say that where he is taking an organisation to the Employment Tribunal he regarded that as being the equivalent to him disciplining them.”.c. In the Newark case at para 25: “The Claimant views employment tribunal proceedings as a means to get rich fast, rather than this being somebody seeking compensation for genuine harm caused by acts of discrimination.”d. In the Red Balloon case, the Claimant was found to have misled the ET: “15. Therefore, on 20 March 2023, when the Claimant attended the hearing before EJ Massarella, he was employed by both JA Nailah and Newark Youth Ltd. The Claimant’s clear statement to EJ Massarella in open court that he was not employed at the time and only doing voluntary work, was incorrect.”e. Going on to further find: “39. It is this Tribunal’s judgment that the Claimant readily misrepresents his communication with the Tribunal. Also, he is prepared to mislead/deceive the Tribunal, if he believes that it would be to his benefit.”[32]The Respondent also submits that an element of the Respondents findings of gross misconduct against the Claimant in these proceedings. Had similarities with the Oxford Kilburn Youth Trust case in that:a. The Claimant stated to his then employer that he had previously been employed by Platform of Creativity. It was then discovered that the limited company no longer existed.b. That the Claimant had stated in his application that there had not been previous safeguarding concerns in previous employments. In the London Borough of Hackney case, the ET found that the Claimant had committed a serious contravention of its safeguarding policies.[33]The Respondent also refers to the London Borough of Hackney case. Submissions regarding this case are recorded in the skeleton argument of Mr Bishop. However, I do draw out one quotation from para 128: “The claimant did not understand the fundamental elements of discrimination and therefore of his own claim. Repeatedly the claimant advanced his case on the basis that he, as a man, had experienced a detrimental event (or dismissal) at the hands of a woman, and seemed unaware, despite guidance from the tribunal, that he must at least prove some element of causation, or prove some facts which go beyond merely demonstrating the protected characteristic and the form of treatment complained of. He failed to do so. The mere fact that most of the decisions complained of were taken by women was not sufficient to do so, and was a matter which we regarded as of marginal bearing.”[34]The Tribunal went on to find that the Claimant was not a credible witness or narrator.[35]In terms of prospects, Mr Bishop on behalf of the Respondents has provided a chronology and goes through the basic outline of events in his skeleton argument.
The Law
[36]Section 6 Equality Act 2010 provides:(1) A person (P) has a disability if— (a)P has a physical or mental impairment, and (b)the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.(2) A reference to a disabled person is a reference to a person who has a disability.(3) In relation to the protected characteristic of disability— (a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability.(4) This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section)— (a) a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and (b) a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability.(5) A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1).(6) Schedule 1 (disability: supplementary provision) has effect.[37]Schedule 1 Part 1 of the Equality Act 2010 provides: Long-term effects 2(1) The effect of an impairment is long-term if—(a) it has lasted for at least 12 months,(b) it is likely to last for at least 12 months, or(c) it is likely to last for the rest of the life of the person affected. (2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. (3) For the purposes of sub-paragraph (2), the likelihood of an effect recurring is to be disregarded in such circumstances as may be prescribed. (4) Regulations may prescribe circumstances in which, despite sub-paragraph (1), an effect is to be treated as being, or as not being, long-term.[38]Rule 38 of the Employment Tribunal Procedure Rules 2024 states: 38.—(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds—(a) that it is scandalous or vexatious or has no reasonable prospect of success;(b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;(c) for non-compliance with any of these Rules or with an order of the Tribunal;(d) that it has not been actively pursued;(e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out). (2) A claim, response or reply may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. (3) Where a response is struck out, the effect is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested). (4) Where a reply is struck out, the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim).[39]In respect of strike out due to breaches of Tribunal Orders, the leading authority is that of Blockbuster Entertainment Limited v James [2006] IRLR 630. The Court of Appeal emphasised that it is a draconian power. The decision to strike out must be a proportionate measure.[40]In respect of strike out due to having no reasonable prospects of success in Anyanwu v South Bank University [2001] IRLR 305, the House of Lords emphasised that the power to strike out claims should only be used in discrimination cases in the plainest and most obvious of cases. Discrimination cases are fact sensitive and it would generally not be appropriate to strike out discrimination cases. I refer to paras 24 and 29 in particular. See also: Ezsias v North Glamorgan NHS Trust [2007 ICR 1126.[41]It is important that before striking out, the essential contentions of a party are understood: Cox v Adecco [2021] ICR 1307. In respect of this point specifically, I would note that the previous Private Preliminary Hearing resulted in a list of issues. Notwithstanding any appeal that has been submitted, I am satisfied that I understand the claims that are being made by the Claimant. As noted before, the Claimant was able to make submissions using the issues as a structure.[42]Rule 40 – Deposit Orders 40.—(1) Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim, response or reply has little reasonable prospect of success, it may make an order requiring a party (“the depositor”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument (“a deposit order”). (2) The Tribunal must make reasonable enquiries into the depositor’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit. (3) The Tribunal’s reasons for making the deposit order must be provided with the order and the depositor must be notified about the potential consequences of the order. (4) If the depositor fails to pay the deposit by the date specified by the deposit order, the Tribunal must strike out the specific allegation or argument to which the deposit order relates. (5) Where a response is struck out under paragraph (4), the effect is as if no response had been presented, as set out in rule 22 (effect of nonpresentation or rejection of response, or case not contested). (6) Where a reply is struck out under paragraph (4), the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim). (7) If the Tribunal following the making of a deposit order decides the specific allegation or argument against the depositor for substantially the reasons given in the deposit order— (a) the depositor must be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 74 (when a costs order or a preparation time order may or must be made), unless the contrary is shown, and (b)the deposit must be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit must be refunded. (8) If a deposit has been paid to a party under paragraph (7)(b) and a costs order or preparation time order has been made against the depositor in favour of the party who received the deposit, the amount of the deposit must count towards the settlement of that order.[43]The following principles apply when considering whether or not to make a deposit order:a. The purpose of a deposit order is “to identify at an early stage claims with little prospect of success and discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs ultimately if the claim fails”. It is not the purpose of deposit orders “to make it difficult to access justice or to effect a strike out through the back door”: Hemdan v. Ishmail [2017] IRLR 228 per Simler J at paras 10-11.b. Because of the access to justice implications, tribunals should take particular care before making a deposit order, and give sufficient reasons before deciding that an allegation or argument has little reasonable prospect, particularly where core facts are in dispute: Sami v. Avellan [2022] EAT 72.c. It is legitimate to have regard to the claimant’s prospects of successfully proving the facts that are essential to the case. This may include forming a provisional view as to the credibility of the assertions being put forward: Van Rensburg v. Royal Borough of Kingston-upon-Thames UKEAT 0095/07.d. The tribunal must engage with, and make a reasonable attempt to understand, the basis of the claim before assessing its prospects of success: Wright v. Nipponkoa Insurance (Europe) Ltd UKEAT/0113/14.[44]In respect of both strike out/deposit orders on prospects of success points, I must not conduct a mini-trial. This was a point that I reiterated to both parties during the course of the hearing.[45]In terms of the law on indirect discrimination and what amounts to a provision, criterion or practice (PCP), I direct myself in accordance with the Court of Appeal in Ishola v Transport for London [2020] ICR 1204, CA, t (in a judgment from Simler LJ) held (at [35] – [36]) that: “The words “provision, criterion or practice” are not terms of art, but are ordinary English words. I accept that they are broad and overlapping, and in light of the object of the legislation, not to be narrowly construed or unjustifiably limited in their application. I also bear in mind the statement in the statutory code of practice that the phrase PCP should be construed widely. However, it is significant that Parliament chose to define claims based on reasonable adjustment and indirect discrimination by reference to these particular words, and did not use the words “act” or “decision” in addition or instead. As a matter of ordinary language, I find it difficult to see what the word “practice” adds to the words if all one-off decisions and acts necessarily qualify as PCPs… If something is simply done once without more, it is difficult to see on what basis it can be said to be “done in practice”. It is just done; and the words “in practice” add nothing. The function of the PCP in a reasonable adjustment context is to identify what it is about the employer's management of the employee or its operation that causes substantial disadvantage to the disabled employee. The PCP serves a similar function in the context of indirect discrimination, where particular disadvantage is suffered by some and not others because of an employer's PCP. In both cases, the act of discrimination that must be justified is not the disadvantage which a claimant suffers … but the practice, process, rule (or other PCP) under, by or in consequence of which the disadvantageous act is done. To test whether the PCP is discriminatory or not it must be capable of being applied to others because the comparison of disadvantage caused by it has to be made by reference to a comparator to whom the alleged PCP would also apply. I accept of course … that the comparator can be a hypothetical comparator to whom the alleged PCP could or would apply.” Conclusions Non Compliance with Orders – Disability
Conclusions
[46]I deal first with the Respondents application to strike out the Claimant’s disability claim on the grounds that the Claimant has unreasonably not complied with the Orders of EJ Partington relating to disability, compounded by the fact that the Claimant did not then comply with the subsequent Orders of EJ Quill.[47]I direct myself in accordance with Blockbuster. Strike out is draconian. The fact of breaches do not mean that strike out must occur. Consideration must be given to more proportionate alternatives.[48]There is also the well known phrasing that the ‘Court’s are open to the difficult as well as to the compliant, so long as they do not conduct their case unreasonably.’ (para 18 of Blockbuster per Sedley LJ).[49]I considered this matter carefully. The fact of the breach of the Orders was established. There was no disability impact statement. There was no medical disclosure. These were standard disclosure orders. The Claimant’s conduct of these proceedings has been unreasonable.[50]I therefore strike out the disability claims under Rule 38 of the Employment Tribunal Procedure Rules 2024 on the basis that:a. Rule 38(1)(b) - The Claimant has conducted the proceedings unreasonably in that he has attended the hearing today which in part is to determine whether he is a disabled person for the purposes of s.6 Equality Act 2010 without providing the necessary disclosure and evidence and intentionally failing to do so.b. Rule 38(1)(c) - The Claimant is in breach of the Orders of the Tribunal in that he has not a) provided the disclosure that has been twice ordered and b) provided a disability impact statement that has been ordered.[51]I sought to discuss and engage with the Claimant as to the situation. I explained that he disability information orders made previously were standard orders that enable the Tribunal to apply the relevant test as to whether or not someone was disabled. It also enabled cross-examination to take place. In answer to my points, the Claimant would simply repeat one or more of the following:a. He had already provided the information.b. He had outstanding appealsc. The Orders of EJ Quill did not need to be complied with because they flowed from the Orders of EJ Partington, which were being appealed.[52]The reason for strike out under Rule 38(b) is as follows:a. This is unreasonable conduct of the proceedings. It isn’t simply unreasonable behaviour. (c.f Bolch v Chipman [2004] IRLR 140 at para 55)b. A fair hearing isn’t possible because the Tribunal is reliant on proper disclosure in order to determine whether someone is disabled for the purposes of s.6 Equality Act 2010.c. Strike out is draconian but proportionate in the circumstances of the case. The breach is deliberate. There were two opportunities to comply with the order, therefore the issue is compounded. The Claimant would not comply with any future order.d. The consequence of the order is that the Claimant is unable to pursue his disability claim before the ET. He had prior warning of this consequence. He also had prior warning via the Order of EJ Quill that his stated reasons for non compliance were not acceptable.[53]The reason for strike out under Rule 38(c) is as follows:a. The Claimant’s breaches of the Orders are deliberate. The basis for this is: i. The Claimant is an experienced litigant. The importance of compliance with Orders has been explained to him. ii. Even if the Claimant were proceeding on the mistaken assumption of his own making that the fact of the appeal of EJ Partingtons CMO entitled him to take no further action, the subsequent Orders of EJ Quill explained that this was incorrect in clear terms. The Claimant could have remedied the breach at this stage. He did not. iii. Even before me today, it was the Claimant’s stated position that he would not provide more information.b. A decision needs to be taken in relation to whether the Claimant is a disabled person for the purposes of s.6 Equality Act 2010 to enable the rest of the case to progress and for orders to be made.c. There is real prejudice to the Respondent. In particular: i. Correctly carried out disclosure allows the Respondent to consider its position and to take a view. It means that evidence which may assist the Claimant and which may not assist the Claimant has been provided. It allows for a more focused crossexamination where disability is disputed. ii. It is not for a party to pick and choose the evidence they provide, even where they have the burden of proof. Disclosure cannot operate on this basis. iii. An impact statement allows for the proper preparation of crossexamination. It means questions are appropriately an sensitively prepared. Where a witness may be vulnerable or sensitive matters being discussed a prepared cross-examination is appropriate, focused and of benefit to all.d. I have considered alternatives to strike out. I have considered postponing the hearing today of my own volition. The Claimant made no such application. I consider such a postponement would be highly prejudicial to the Respondent and there was no guarantee that costs could be recovered. It would not progress this case. It would mean relisting this hearing (three days) into the future.e. In any event, postponing today would not remedy the mischief. The Claimant had intentionally breached the orders and did not intend to comply with the orders. I would only consider re-setting orders (and this is in the context of there already being breaches of the Orders of EJ Partington and EJ Quill) if there was a clear and reasonable prospect of compliance. There was not.[54]The effect of this is that the following claims are struck out:a. Indirect disability discriminationb. Failure to make reasonable adjustments Section 6 Disability[55]In the alternative, I have proceeded to consider disability on the evidence before me.[56]In addition to providing for strike out, the orders of EJ Quill also determined that the Claimant would not be able to call additional evidence unless it was served by the 13th December 2024. This order included a ‘relief’ escape clause.[57]I took the Claimant to the Order of EJ Quill. I explained in my own words the effect of the order and the phrasing of ‘relief from sanctions’. I asked the Claimant whether he was making such an application before me today. The Claimant said ‘no’.[58]The result of there being no application for relief from sanctions is that there is no witness evidence before me, either in the form of a statement or in terms of live evidence, such evidence being debarred by the Order of EJ Quill. In any event, I consider it would have been unduly prejudicial to require the Respondent to cross-examine the Claimant today based upon live evidence in chief without proper disclosure or notice.[59]This is not a case in which the ET 1 could be treated as a witness statement.[60]In the CMO of EJ Partington, the impairment is said to be: ‘anxiety and depression leading to suicidal thoughts’.[61]Therefore, the height of the evidence before me is:a. The fact that the Claimant was referred to OH.b. A fit note from October 2024 referring to work-related stressc. A fit note from January 2024 referring to anxiety and panic attacks.d. A third fit note from April 2024 referring to “Anxiety and depression; not to attend any Barnet Council led meetings/court or tribunal hearings in person’. I note that this is post the effective date of termination.[62]There is no OH report before me. The Respondent asserts that the Claimant did not attend. The Claimant asserts that he did. The Respondent referred me to page 12 of the investigation bundle. However, whether he did or did not attend is not really of assistance for these purposes. The point here is that the Claimant bears the burden of proof to prove that he is a disabled person. If a document does not exist then it doesn’t assist in the discharge of the burden of proof in these circumstances.[63]I discussed the relevant period with the parties. With neither party expressing a positive view as to a period, I settled on the relevant period being the period of the Claimants employment from his start date to his end date.[64]On the basis of this, I am unable to find that any element of the s.6 test is met. On the balance of probabilities, I am not able to find that an impairment exists because of a reference in a fit note that has not been tested and where disclosure has not taken place. The Claimant has not established that the effect on normal day to day activities is more than minor or trivial or long term.[65]The Claimant has therefore failed to prove on the balance of probabilities that he is a disabled person for the purposes of s.6 Equality Act 2010. Strike Out in Respect of All Claims General Context[66]I have before me a situation in which the Respondent relies heavily on previous litigation in order to strike out the Claimant’s claims as a matter of it falling within the vexatious provisions of Rule 38 or alternatively, to use that previous litigation as a means of informing my assessment of the prospects of success in terms of assessing prospects of success for strike out/deposit purposes.[67]The Claimant’s position is that the previous cases are not relevant.[68]I take the view that the previous cases are matters on the public record. To positively exclude them would be unduly prejudicial to the Respondents and artificial. I find this because:a. The sheer volume of cases. The Respondents point to 7 overlapping claims in the present proceedings and at least 46 claims overall in 16 cases since 2016.b. The judicial findings/observations in relation to the Claimant are serious.c. There are ‘similar fact’ points such as the types of claims made, the history of breaches of Tribunal orders and the consistent naming of multiple individual Respondents that may be relevant to the case today.[69]At the same time, I do not take this too far. In terms of assessing prospects for the purposes of strike out/deposit, I must too look at the specific cases before me today.[70]The application to strike out must be seen in the context of the following:a. It is clear from the volume of the cases placed before me that the Claimant is a serial litigant in the Employment Tribunal. This is context.b. To the best of my knowledge, whilst the pleadings reference the possibility of seeking such an order there is no active restricted proceedings order made under Section 33 of the Employment Tribunals Act 1996 by the Employment Appeal Tribunal. It is not my role to create such an order through the back door as it were. I should not strike out claims simply because the Claimant is a serial litigant.c. That part of the problem the Respondents face given the approach of the Claimant is that this in effect litigation by attrition.d. Having heard from the Claimant in his submissions today, it is clear that he was focused on what could be fairly described as reasonableness points for unfair dismissal that would normally be made when considering s.98(4) Employment Rights Act 1996. Striking Out – Rule 38(1)(a)[71]I do not strike out the claims on the basis that the bringing of them is scandalous, vexatious or an abuse of process as defined in Rule 38.[72]It is fair to say that I considered striking out under this ground carefully. This was not a wild submission by hopeful Respondents attempting to chance their arm. This was a proper application with a basis. I came close to making an Order.[73]This is not a job application case where any employer could be targeted. In a job application case, the fact of multiple previous litigation can sometimes lead to a conclusion that this was not a genuine job application. In the present case, there was an employment relationship. If parties are to be restricted from accessing the Tribunal then there is a statutory process under s.33 Employment Tribunals Act 1996. This does not mean that there cannot be a strike out Order under Rule 38, but it is important context that there is a pre-existing statutory route to protect parties from serial litigants and that statutory route has a number of safeguards, not least the involvement of the Attorney General and a senior Judge in the Employment Appeal Tribunal.[74]Whilst I deprecate and discourage the approach of the Claimant to this litigation there is insufficient support in the authorities that a discrimination case which is disputed on the facts should be struck out because of extensive and severe previous conduct. I am not suggesting that there is an absolute prohibition, rather that there is insufficient support for determining discrimination cases in this way as opposed to on the facts.[75]Where the authorities are at their strongest, e.g. in respect of res judicata, or Henderson v Henderson (1843) 3 Hare 100 these attach to well known principles such as finality in litigation. In the present case the parties are different. Striking Out – Rule 38(1)(b)[76]I have already struck out the Claimant’s disability claim due to unreasonable conduct and breaches of Orders. For reasons of proportionality, that was confined to the disability claims.[77]I do not strike out the Claimant’s remaining claims on the basis that his conduct of the proceedings has been unreasonable. The Claimant has breached Orders and has not engaged reasonably with the Tribunal process. I do not consider strike out to be a proportionate decision under this specific heading.[78]The fact that I do not strike out under this head should not be seen as an endorsement of the Claimant’s conduct of these proceedings.[79]In terms of the point that the Claimant has been referring to incorrect case numbers in his ET 1 thereby causing additional work for the Respondents as they try to cross reference and find other claims. I am not able to find that this point has been made out. I agree that the Respondents have been able to point to incorrect numbers.. The Claimant’s position is that these numbers are acceptance numbers given on submission of the ET 1 and was his way of crossreferring to his other claims. I have no way of verifying this contention within the confines of the evidence that I have before me today. Because of this uncertainty, I do not consider this submission to be made out.[80]However, in terms of the sheer volume of proceedings, i.e. the number of ET 1’s submitted, this is a concern. In response, the Claimant’s point is that he considers himself limited in terms of the number of Respondents he can add to an ET 1. In response however, the point is of course whether the naming of so many individuals is required and whether proper consideration has been given to the reasonableness of such an approach. I regard the sheer number of ET 1’s. to be capable of amounting to unreasonable conduct. However, I do not strike out on the grounds of a) Whilst this conduct is not to be encouraged, it is not unheard of within he Tribunal system and without more definitive authority saying such conduct should lead to strike out, I am reluctant to do so and b) I would not regard strike out as a proportionate response, particularly in light of the fact that the Preliminary Hearing of EJ Partington was able to conclude with list of issues. Striking Out – Rule 38(1)(a) – No Reasonable Prospects of Success[81]I now move on to consider Rule 38(1) in the context of the submission that the claims have no reasonable prospects of success. I am striking out with reference to the list of issues rather than a pleading because the list of issues is based on a CMO which in turn was based on discussions with the parties and a further information document. It is important that there is certainty. This approach was no doubt taken by previous Employment Judges attempting to sensibly progress the case.[82]I strike out the following claims as having no reasonable prospect of success:a. Para 4.1.11 of the list of issues – whistleblowing detriment. On 3 January 2024 did Barnet Council, Brigitte Jordan, Owen Chiguvare, Chris Munday, Hannah Richens, Julia Altman, John Hooton and Marlene Mcloud stop ACAS conciliation? I strike this out because s.18(7) of the Employment Tribunals Act 1996 provides that anything communicated to ACAS is privileged unless the party sending the communication provides their consent. Therefore, any communication by a Respondent ending early conciliation is inadmissible unless they give consent. Consent has not been given. In any event, a party is entitled to end early conciliation and there is no reasonable prosect of the fact of ACAS early conciliation ending being a whistleblowing detriment.b. Para 7.2.11 of the list of issues – Direct sex discrimination. On 3 January 2024 did Barnet Council, Brigitte Jordan, Owen Chiguvare, Chris Munday, Hannah Richens, Julia Altman, John Hooton and Marlene Mcloud stop ACAS conciliation? The reasoning in respect of whistleblowing detriment is repeated. There is no reasonable prospect of the ending of ACAS Early Conciliation being because of sex.c. Para8.1.1 of the list of issues - Indirect sex discrimination relying on the PCP “Barnet Council, Chris Munday, Hannah Richens, Julia Altman, John Hooton and Marlene Mcloud allowing Owen Chiguvare and Briggitte Jordan to contact the Claimant on 18 October 2023 and subsequently. Before me to today, it was the Claimant’s position that this was directed at him. This is not a PCP. I refer back to Ishola as to what amounts to a PCP. It is directed at the Claimant. It is not applied to other persons. Had the indirect disability discrimination not been struck out as a result of the section 6 Equality Act decision, then the indirect disability claim using this PCP would have been struck out.d. Para8.1.2 of the list of issues- Indirect sex discrimination relying on the PCP “Barnet Council, Chris Munday, Hannah Richen, Julia Altman, John Hooton, Marlene Mcloud inviting the Claimant to meetings.” The reasoning is the same for this as in the para above. Before me to today, it was the Claimant’s position that this was directed at him. This is not a PCP. I refer back to Ishola as to what amounts to a PCP. It is directed at the Claimant. It is not applied to other persons. Had the indirect disability discrimination not been struck out as a result of the section 6 Equality Act decision, then the indirect disability claim using this PCP would have been struck out.e. Para8.1.3 of the list of issues – indirect sex discrimination relying on the PCP ‘Dismissing employees while off sick’. i. The PCP is capable of having wider application in the sense of ‘employees who are off sick may be dismissed’ It is therefore capable of amounting to a PCP. ii. The problem is with the remaining elements of the test for indirect discrimination. No basis for particular disadvantage has been advanced in relation to the protected characteristic of sex. It is not self-evident that the male protected characteristic is at a particular disadvantage. iii. With regards to justification, I acknowledge that the Respondent bears the burden of proof and that justification is normally a fact sensitive matter suitable for trial. However, it is the PCP that needs to be justified. In the present case, the PCP is effectively arguing that the fact of sickness should prevent dismissal. It is difficult to see how that can not be justified.f. Para 10.1.11 of the list of issues – harassment related to sex. On 3 January 2024 did Barnet Council, Brigitte Jordan, Owen Chiguvare, Chris Munday, Hannah Richens, Julia Altman, John Hooton and Marlene Mcloud stop ACAS conciliation? For the reasons given in relation to whistleblowing detriment and direct sex discrimination above, there is no reasonable prospect of the Claimant establishing that the ending of ACAS Early Conciliation was related to sex or that it amounted to harassment of him within the meaning of s.26 Equality Act 2010.g. Para 11.2.11 of the list of issues – victimisation. On 3 January 2024 did Barnet Council, Brigitte Jordan, Owen Chiguvare, Chris Munday, Hannah Richens, Julia Altman, John Hooton and Marlene Mcloud stop ACAS conciliation? For the reasons given in relation to whistleblowing detriment above, there is no reasonable prospect of the Claimant establishing that the ending of ACAS Early Conciliation was because of a protected act.[83]I do not strike out the remainder of the claims as having no reasonable prospects of success. I have not done so because:a. This was a case whereby the Claimant was in employment. There was a work relationship, albeit one that went wrong quickly. It is not a job application case where potential Respondents can face claims from a self-selecting pool of any individual. There is no s.33 Employment Tribunals Act order in place. In the absence of such an order, I must ensure that matters are not taken too far and that there is access to the Employment Tribunal.b. Strike out is a high bar.c. The inherent weaknesses in the case are better reflected under the deposit order wording of ‘little reasonable prospects of success’ , which I consider below. Deposit Orders[84]The points made at the start of the strike out section above apply as well in respect of the making of deposit orders.[85]As noted above, I am not conducting a mini trial. I am taking the pleadings, the legal argument and any other document that I have been referred to and assessing any argument or contention against the test of ‘little reasonable prospect’[86]The Claimant makes the following points in respect of the merits of the case:a. The conflict began during his induction period. He had immediate concerns on starting employment.b. The Respondent undertook two months of background checks into him.c. That the references to companies no longer existing is not the point. He and others are using these names as ‘unregistered’.d. That the Respondent did not follow a fair procedure. He says he was assaulted. The correct people were not interviewed[87]The Claimant should be assured that I have read the document titled ‘Joseph Johnson skeletal argument’ in full.[88]I make deposit Orders in respect of the following:a.S.103A Employment Rights Act 1996. Automatically unfair dismissal.b. S.47B Whistleblowing detriment.c. Direct sex discriminationd. Harassment related to sexe. Victimisation.[89]I do not make these deposit orders lightly or casually. They are not a ‘run of the mill’ order. They have serious implications for the future conduct of the Claimant’s case. I am making these orders because this is an unusual case and the claims advanced have little reasonable prospect of success and it is appropriate to make deposit orders.[90]I make these Deposit Orders for a number of reasons. I begin with broad points and the overall context of these claims:a. There are previous, multiple, serious findings of fact by previous Tribunals which the Respondents are entitled to rely upon at a full hearing. To prevent the Respondent from doing so would be prejudicially excluding potentially relevant evidence. These will inevitably impact on the Claimant’s credibility.b. Multiple Respondents have been named and had discrimination alleged against them with little apparent thought as to their specific alleged act. The mere mention of or mere involvement of someone appears to have resulted in them being accused of discrimination.c. The same detriments are alleged for the whistleblowing detriment claim the direct sex discrimination claim, the sex harassment claim and the victimisation claim. I accept that it is possible to plead sex harassment with direct in the alternative or vice versa but beyond that it appears to be a list of things alleged by the Claimant without thought as to causation or why it would fall within the statute. The Claimant’s case goes beyond simply putting forward matters in the alternative.d. Further, in respect of causation, the Claimant focuses on matters of fairness such as his suspension and investigation. The Claimant made the kind of points that would normally fall under s.98(4) Employment Rights Act 1996 if this were a claim of unfair dismissal. The use of whistleblowing law or the Equality Act 2010 would appear on the face of it to be being used as a proxy so as to enable the Tribunal to have jurisdiction. I am not able to identify the something more envisaged in the well known burden of proof cases Igen v Wong [2005] IRLR 258 and Madarassy v Nomura International PLC [207] ICR 867.e. Following on from this, the difficulty in drawing inferences of discrimination from mere unreasonable conduct is well known: Bahl v The Law Society [2004] IRLR 799.f. This was a short period of employment. There appears to have been conflict from the outset. This appears to be consistent with previous examples of the Claimant being in employment.g. The underlying narrative of the Claimant’s case put on the basis of conspiracy and what appears to be hyperbole.[91]Before I turn to more specific points, I regard these broad points as relevant factors as to why there is little reasonable prospects of success in relation to all claims.[92]I also make the following points in relation to specific claims:a. The Respondents stated decision to dismiss includes findings relating to the claimant relying on references from companies that no longer exist. Given the findings in previous proceedings, (which I accept are not binding and do not give rise to res judicata) and the fact of a company being dissolved is a provable fact, the s.103A ERA 1996 claim is weak. On the face of it, the Claimant has made false statements to his employer, which have been expressly referenced as part of the decision to dismiss. Whether a background check was carried out or not is little by way of answer to the point. Further, the reasonableness of the decision of the Respondent to rely on this is not the dispute. Rather, the Claimant must prove the reason or principal reason for the dismissal was a protected disclosure in circumstances where there is prima facie evidence of false statements being made to the employer. I consider that this has little reasonable prospects of success.b. In previous proceedings the Claimant has made wide ranging allegations of sex discrimination which were found to be without foundation.c. In relation to sex discrimination and harassment, there appears to be little/anything by way of primary facts that would indicate conduct that is prima facie because of or related to the protected characteristic of sex.d. Further, for the purposes of s.23 Equality Act 2010, given the Claimant’s position and the fact of the specific allegations against the Claimant, it is highly unlikely that any named comparator would be in circumstances of ‘no material difference’. Therefore, the Claimant will have to rely on a hypothetical comparator for direct purposes. I see no basis on which a hypothetical comparator would have been treated differently.e. The Claimant places particular focus on Steven Miller who is male. The focus on his involvement appears to relate to points of reasonableness rather than sex.f. In terms of victimisation and/or whistleblowing detriment, 8 staff members had reported concerns regarding the Claimant’s management practices to the Claimant’s line manager, prior to his suspension. I accept that there may be some dispute of fact between the parties regarding causation on this point. However, it is the case that prior to the detriments, multiple concerns had been raised in relation to the Claimant.g. The Claimant went off sick on the 2nd October 2023, many of the detriments after this date appear to be the Claimant’s perception of how someone who is not present at work should be treated, i.e. reasonableness points. They do not appear to be related to protected acts, protected disclosures or because of or related to sex.h. It is undisputable that there were concerns and then allegations about the Claimant. Any employer is entitled to look into those. A number of the specific detriments relate to the fact that the Respondent Council took steps to investigate those concerns and the procedure that it adopted.[93]I have not made deposit orders on the submitted basis that the Claimants alleged protected disclosures are prolix and unclear, notwithstanding previous efforts. Before me, I sought to get the Claimant to engage with identifying the specific disclosure rather than the entirety of a long document. I did not make sufficient progress on this point and have excluded it from my consideration. I accept that this approach is prejudicial to the Respondent. However, I was faced with a situation whereby the Claimant was stating that he would not be attending days 2 and 3 and therefore needed to ensure that the remainder of the key points were covered in the time that we had. Taking a step back, I sought to deal with the situation that was put in front of me at this hearing in accordance with the overriding objective as best I can.[94]Having decided that each of the claims have little reasonable prospect of success within the meaning of Rule 40 of the Employment Tribunal Procedure Rules 2024, I have a residual discretion as to whether or not to make deposit orders. I exercise my discretion in favour of making orders. It is plain that this is a case in which such an approach is necessary.[95]Had the claim for disability not been struck out, I would have made deposit orders in respect of the claim for reasonable adjustments as well.[96]In terms of the Claimants means, there was no evidence placed before the Tribunal. I sought to make enquiries of the Claimant. He says that he has income of between £1000 and £3000 per month. He says that he currently has £2000 in the bank. I sought to make further enquiries, including what level of deposit the Claimant would submit was affordable if I were minded to make a deposit order. The Claimant said “zero” and that he was “not interested in paying a deposit order.”[97]The Respondent drew my attention to what has been said previously regarding the Claimant and deposit Orders by EJ Massarella. I was referred to paras 10, 12 and 22 which reference his Judgment.[98]The Claimant said that I should not be allowed to rely on EJ Massarella as the Claimant had complained about him. I did not agree with this. From the history of this litigation and prior litigation, sadly, there is a history of the Claimant expressing displeasure at decisions which do not go his way. In any event, the fact of the complaint doesn’t negate the validity of the point.[99]In respect of the claim that he was automatically unfairly dismissed within the meaning of s.103A Employment Rights Act 1996, I order the Claimant to pay a deposit of £360.00.[100]In respect of the whistleblowing detriment claims, there are 18 detriments that have not been struck out. I order a deposit of £360.00 to be paid in order to continue with the allegations that the Claimant suffered a whistleblowing detriment.[101]In respect of the direct sex discrimination claims, there are 18 detriments that have not been struck out. I order a deposit of £360.00 to be paid in order to continue with the allegations that the Claimant was directly discriminated against because of his sex.[102]In respect of the sex harassment claims, there are 18 detriments that have not been struck out. I order a deposit of £360.00 to be paid in order to continue with the allegations that the Claimant was subjected to harassment related to his sex.[103]In respect of the victimisation claims, there are 18 detriments that have not been struck out. I order a deposit of £ 360.00 to be paid in order to continue with the allegations that the Claimant was victimised.[104]I considered making deposit orders in relation to each detriment individually. This would have resulted in 73 individual deposit orders at around £20 each plus the sum of £360 for the s.103A allegation. Indeed, if you then in turn consider each individual detriment and then each individual Respondent, the number of 73 rises exponentially. I considered Rule 40 in the context of the overriding objective. This would have the attractiveness of allowing the Claimant to be more specific about which points were pursued. However, this was outweighed by the difficulty in making this volume of orders, the resulting potential confusion over which orders had been paid and which had not, which would be problematic for all parties. This was also in the wider of context of the lack of engagement from the Claimant with regard to his means and I was not persuaded that a greater number of smaller sums would be appropriate.[105]Taking a step back and looking at totality, this results in a total sum of £1800.00. I must consider the effect of the totality of the sum. On the limited information that I have from the Claimant regarding his means, this is affordable. It is not punitive. It is set at a reasonable amount so as to make the Claimant weigh up whether or not to continue and if he were to continue, to make a positive decision to do so.[106]I consider that a period of 28 days is reasonable in terms of giving the Claimant sufficient time to pay whilst also assessing his position as to what claims he wishes to proceed with.[107]Finally, I would note that the more claims that are made, the more need there is to sub-divide what would otherwise be a larger figure. Hence it is a lower amount because a decision has been made to make so many claims. Of course, the flip side of this is that by making so many claims, there is a risk of some deposit orders being paid and some not with those that are being paid being at a lower amount than they otherwise would have been. Other Matters/Orders[108]I order that case number 3300471/2024 is joined with the other case numbers going forward as per the possibility indicated by EJ Quill previously.[109]I direct that there should now be listed a Public Preliminary Hearing (Judge sitting alone, time estimate one day, via CVP). This should take place at least one month after the deadline for the payment of the deposit orders that I have made. The purpose of this hearing is to:a. Consider whether as a consequence of my strike out Orders in relation to individual claims above, any individual case number or claim against an individual Respondent should be struck out.b. Consider whether any individual Respondent or claim number is struck out should any deposit order not be paid. Whilst the strike out of a claim is automatic following the non payment of a deposit order, the consequences of this for individual Respondents and claim numbers can be considered at the next hearing. In stating this, I am trying to achieve administrative competency/clarity. The automatic operation of law of the strike out occurring at the point of non payment is unaffected.c. to case manage this case in light of the above orders. If any deposit orders have been paid then case management will need to take place in order to progress this matter to a full hearing.[110]Whilst I do not make an Order to this effect, given the sheer volume of the file, the Judge hearing the next case is likely to benefit from skeleton arguments in advance, setting out what needs to be decided and what the parties positions are. It is essential that the partis focus on giving the Judge the information they need in order to conduct the hearing effectively.[111]I have ordered a one day hearing rather than three hours because the next Judge is faced with a large file that will appear daunting with a number of decisions to read, they will need to conduct the actual hearing and have time to write it up.[112]I have ordered a public hearing rather than a private one because of the potential that a strike out decision of an individual claim number or Respondent is a necessary consequence of my Judgment today. It is the kind of point that should have been dealt with at the end of this three day public preliminary hearing. In the absence of such a hearing at the end of this three day period, it should be dealt with at the next hearing.[113]Separate documents will be sent out as I am required to separate out Judgments, Deposit Orders and Case Management Orders. The reasons for my Judgments and Orders are contained within these reasons. Approved By:
Conclusions
Conclusions
[1]Automatic unfair dismissal on grounds of a protected disclosure (s.103A Employment Rights Act 1996.[2]Detriments as a result of making a protected disclosure (s.47B Employment Rights Act 1996)[3]Direct discrimination detriments because of sex (s.13 Equality Act 2010) Harassment related to sex (s.26 Equality Act 2010[5]Detriments because he had done a protected act (s.27 Equality Act 2010)[1]The claimant was ordered to pay a deposit of £360.00 in respect of each of the five claims set out above, following a preliminary hearing held on 24, 25 and 26 February 2025. The order was sent to the claimant on 11 March 2025.[2]The claimant has failed to pay these deposits. The above claims are therefore struck out under rule 40(4) of the Employment Tribunal Procedure Rules 2024. Approved by: