Ms J Roberts v Arriva London North Ltd T/a Arriva London: 3300779/2021

EMPLOYMENT TRIBUNALS

Case No 3300779/2021

Between

Ms J RobertsClaimant

Arriva London North Ltd T/a Arriva LondonRespondent

Before

Employment Judge A M Buchanan

Date 22 June 2023

JUDGMENT

ON PUBLIC PRELIMINARY HEARING It is the judgment of the Tribunal that:-

[1]The complaints of race discrimination howsoever advanced pursuant to the provisions of the Equality Act 2010 are dismissed on withdrawal by the claimant.

[2]The complaint of detriment on the grounds of health and safety advanced pursuant to sections 44 and 48 of the Employment Rights Act 1996 is dismissed on withdrawal by the claimant.

[3]In the absence of any application by the respondent for a deposit order pursuant to Rule 39 of Schedule I to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, no deposit order is made at this stage in respect of any complaint now pursued in these proceedings.

[4]Case Management Orders are issued separately. Case Number: 3300779/2021 2 ___________________________________ EMPLOYMENT JUDGE A M BUCHANAN

REASONS

[1]The claimant was employed by the respondent as a bus driver from December 2007 to 14 October 2020. On 11 January 2021 she presented a claim of race discrimination, disability discrimination, unlawful detriment, and unfair dismissal, specifically:a. Direct disability discrimination (section 13 Equality Act 2010 (“EA”));

b. Discrimination arising from disability (section 15 EA); Case No: 3300779/2021

c. Failure to make reasonable adjustments (sections 20-21 EA);

d. Harassment related to disability (section 26 EA);

e. Victimisation (section 27 EA);

f. Ordinary unfair dismissal (section 94 Employment Rights Act 1996 (“ERA”);

g. Automatic unfair dismissal (section 100(1)(c) ERA);

h. Detriment on the grounds of health and safety (sections 44 and 48 ERA);

i. Unparticularised claim(s) of race discrimination.

[2]The respondent admits that the claimant was, at all material times, a disabled person by reason of her back injury, and that it dismissed the claimant for a reason related to her disability. The respondent contends that this was a proportionate means of achieving a legitimate aim. The respondent denies that it unfairly dismissed the claimant or subjected the claimant to discrimination or detriment.

[3]The claim was case managed by Employment Judge Buchanan at a preliminary hearing on 8 June 2022:a. The claims of race discrimination and detriment on grounds of health and safety were dismissed on withdrawal by the claimant;

b. A public preliminary hearing was listed to determine whether the claims to which the unless orders were attached should be struck out, or a deposit order made, pursuant to rules 37(1)(a) and rule 39 of the Tribunal rules, respectively.

[4]On 8 July 2022 the claimant wrote to the Tribunal withdrawing the claim of direct disability discrimination (section 13 EA). Issues for the public preliminary hearing

[5]The issues for the hearing were:a. Should the claim of direct disability discrimination be dismissed on withdrawal pursuant to rule 52 of the Tribunal rules?

b. Did the claims of harassment, victimisation, and automatic unfair dismissal (“the relevant claims”) have no reasonable prospects of success?

c. If so, should the Tribunal exercise its discretion to strike out the relevant claims pursuant to rule 37(1)(a) of the Tribunal rules? Procedure, documents, evidence and parties’ submissions

[6]There was a bundle of 100 pages for the preliminary hearing.

[7]The respondent produced a written skeleton argument, which speaks for itself. The respondent made short oral submissions in response to the claimant’s submissions.

[8]The claimant made oral submissions. She said that the relevant claims should not be struck out as they were fact sensitive, and the prospects of success Case No: 3300779/2021 exceeded the relevant thresholds. The claimant referred to Ezsias v North Glamorgan NHS Trust

[2007] ICR 1126

; Ghumra v Home Office

UKEAT/0077/15/RN

; and McKerrow v The Princess Alexandra Hosptial NHS Trust

UKEAT/087/11/RN

[9]Insofar as was necessary, I clarified the relevant claims with the claimant so that I understood those claims before I considered the strike out application.

The law

[10]The Tribunal rules state, so far as is relevant: 37.— Striking out (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success.

[11]Discrimination claims should not be struck out except in the very clearest of circumstances: Anyanwu v South Bank Students’ Union

[2001] IRLR 305

: ''For my part such vagaries in discrimination jurisprudence underline the importance of not striking out such claims as an abuse of the process except in the most obvious and plainest cases. Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest.'' (Lord Steyn at paragraph 24) '' … discrimination issues of the kind which have been raised in this case should as a general rule be decided only after hearing the evidence. The questions of law that have to be determined are often highly fact-sensitive. The risk of injustice is minimised if the answers to these questions are deferred until all the facts are out. The tribunal can then base its decision on its findings of fact rather than on assumptions as to what the claimant may be able to establish if given an opportunity to lead evidence.'' (Lord Hope of Craighead at paragraph 37)

[12]Choundhury P (as he then was) in Malik v Birmingham City Council (unreported) 21 May 2019 provided a summary of the relevant legal principles (at paragraphs 30-33): 30. It is well-established that striking out a claim of discrimination is considered to be a Draconian step which is only to be taken in the clearest of cases: see Anyanwu & Another v South Bank University and South Bank Student Union

[2001] ICR 391

. The applicable principles were summarised more recently by the Court of Appeal in the case of Mechkarov v Citibank N.A

[2016] ICR 1121

, which is referred to in one of the cases before me, HMRC v Mabaso

UKEAT/0143/17

. 31. In Mechkarov , it was said that the proper approach to be taken in a strike out application in a discrimination case is that:(1) only in the clearest case should a discrimination claim be struck out;

(2) where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence;

(3) the Claimant's case must ordinarily be taken at its highest;

(4) if the Claimant's case is "conclusively disproved by" or is "totally and inexplicably inconsistent" with undisputed contemporaneous documents, it may be struck out; and

(5) a Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts." 32. Of course, that is not to say that these cases mean that there is an absolute bar on the striking out of such claims. In Community Law Clinics Solicitors Ltd & Ors v Case No: 3300779/2021 Methuen

UKEAT/0024/11

, it was stated that in appropriate cases, claims should be struck out and that " the time and resources of the ET's ought not be taken up by having to hear evidence in cases that are bound to fail." 33. A similar point was made in the case of ABN Amro Management Services Ltd & Anor v Hogben

UKEAT/0266/09

, where it was stated that, " If a case has indeed no reasonable prospect of success, it ought to be struck out." It should not be necessary to add that any decision to strike out needs to be compliant with the principles in Meek v City of Birmingham District Council

[1987] IRLR 250

CA and should adequately explain to the affected party why their claims were or were not struck out.

[13]In Cox v Adecco

[2021] ICR 1307

HHJ Tayler analysed the case law, including the above guidance from Malik, and provided a summary of the general propositions (at paragraph 28):(1) No one gains by truly hopeless cases being pursued to a hearing.

(2) Strike out is not prohibited in discrimination or whistleblowing cases; but especial care must be taken in such cases as it is very rarely appropriate.

(3) If the question of whether a claim has reasonable prospects of success turns on factual issues that are disputed, it is highly unlikely that strike out will be appropriate.

(4) The claimant's case must ordinarily be taken at its highest.

(5) It is necessary to consider, in reasonable detail, what the claims and issues are. Put bluntly, you can’t decide whether a claim has reasonable prospects of success if you don’t know what it is.

(6) This does not necessarily require the agreement of a formal list of issues, although that may assist greatly, but does require a fair assessment of the claims and issues on the basis of the pleadings and any other documents in which the claimant seeks to set out the claim.

(7) In the case of a litigant in person, the claim should not be ascertained only by requiring the claimant to explain it while under the stresses of a hearing; reasonable care must be taken to read the pleadings (including additional information) and any key documents in which the claimant sets out the case. When pushed by a judge to explain the claim, a litigant in person may become like a rabbit in the headlights and fail to explain the case they have set out in writing.

(8) Respondents, particularly if legally represented, in accordance with their duties to assist the tribunal to comply with the overriding objective and not to take procedural advantage of litigants in person, should assist the tribunal to identify the documents in which the claim is set out, even if it may not be explicitly pleaded in a manner that would be expected of a lawyer.

(9) If the claim would have reasonable prospects of success had it been properly pleaded, consideration should be given to the possibility of an amendment, subject to the usual test of balancing the justice of permitting or refusing the amendment, taking account of the relevant circumstances.

Conclusions

[14]The claimant consented to dismissal on withdrawal and therefore the claim of direct disability discrimination will be dismissed pursuant to rule 52 of the Tribunal rules.

[15]I dismiss the respondent’s strike out application for the reasons set out below.

[16]In essence, all the claimant’s claims are about the fact that she was dismissed for a reason that was in some way related to her back injury, and she says that was discriminatory and unfair. The respondent admits that the claimant had a back injury that amounted to a disability, and that she was dismissed for a reason related to that. The facts of the case fit more naturally with the existing claims (section 15 EA, sections 20-21 EA, and section 94 ERA), but that does not mean that the relevant claims have no reasonable prospects of success. I am mindful of the fact that the claims are fact sensitive and that the first two claims are of discrimination. I have regard to the guidance set out above about striking out such claims. I deal with each claim separately below. Case No: 3300779/2021

[17]First the claim of harassment related to disability. The unwanted conduct relates to the decision to dismiss the claimant and the failure by the respondent to overturn that on appeal. The claimant failed to provide information in compliance with the unless order to explain why this related to disability. At the preliminary hearing, the claimant explained that it was related to disability because she was dismissed for a disability related reason. This seems to be an attempt to convert the section 26 EA claim into either a section 15 EA claim (which the claimant has already brought) or a section 13 EA claim (which has been dismissed upon withdrawal). However, given the respondent has admitted that the reason for dismissal was disability related, the point is arguable and is appropriate for determination at the final hearing rather than at the preliminary stage. The claimant has not articulated why this had the proscribed effect. This is a factual issue for the final hearing.

[18]Second, the claim of victimisation. The facts do not naturally fit within the framework of a victimisation claim. However, the claimant’s somewhat novel arguments involve factual issues to be determined at the final hearing:a. The protected acts are the occupational health reports. This is a novel argument and neither party referred to any legal authority on this point. It is possible that the reports are protected acts within the meaning of section 27(2)(c) EA;

b. The detriments relate to the decision to dismiss the claimant and the failure by the respondent to overturn that on appeal. It seems inherently unlikely that the dismissal and decision on appeal were because of the occupational health report per se, rather than its specific contents. But the claimant says that she relies on the contents of the reports (specifically the history of her complaint and the opinion). It is likely that the respondent had regard to the occupational health adviser’s opinion when reaching their decision.

[19]Third, the claim of automatic unfair dismissal. The claimant says that she was dismissed because she complained about her own back injury which was a matter connected with her work which she reasonably believed was harmful or potentially harmful to health and safety. Again, this is somewhat novel use of the legislation. However, I can see that a complaint about the claimant’s back injury could be a matter connected with her work which she reasonably believed was harmful or potentially harmful to health and safety, particularly her own. It seems much more likely that she was dismissed due to her incapacity and sickness absence, rather than the fact that she brought the back injury to the respondent’s attention, but, again, this is a fact sensitive issue which should be determined at the final hearing. _____________________________ Employment Judge Gordon Walker Date: 16 November 2022

Introduction

[1]The claimant Ms Julia Roberts was employed by the respondent, the wellknown bus company, between 2007 and 14 October 2020 when she was dismissed. The claimant was employed as a bus driver but also undertook trade union and health and safety representative roles.

[2]Having gone through early conciliation, on 11 January 2021 the claimant presented a variety of complaints to the Employment Tribunal. She was represented at that time by Mr John Neckles of the PTSC Union. Mr Neckles included claims of disability discrimination, race discrimination, detrimental treatment and automatically unfair dismissal on health and safety grounds, as well as “ordinary” unfair dismissal. The discrimination claims were ones of harassment, victimisation, direct discrimination, discrimination arising from disability and failure to make reasonable adjustments. Case Number: 3300779/2021 2

[3]These claims were the subject of case management at a hearing before Employment Judge Buchanan on 8 June 2022. The claimant withdrew her claims of race discrimination and of detriment on health and safety grounds at this hearing.

[4]Judge Buchanan attempted to clarify the issues in the case but found it necessary to make an order for further information in relation to some of the claims. This was contained in an “unless order”, that is an order which, if not complied with, would mean the claims to which it related would be automatically struck out. The claimant’s claim of “ordinary” unfair dismissal was not subject to the unless order.

[5]Following this hearing the claimant withdrew her complaint of direct disability discrimination.

[6]The claimant did not comply with the unless order.

[7]The case next came before the Tribunal on 8 November 2022, when it was heard by Employment Judge Gordon-Walker. For the reasons she gave at the time, Judge Gordon-Walker granted the claimant relief against sanction in respect of those aspects of her claim which had been automatically struck out but made the claimant’s claims of harassment, victimisation and automatic unfair dismissal subject to deposit orders. The deposits were not paid so those aspects of the claimant’s claims were subsequently dismissed.

[8]That meant that all that remained in the claim was the complaint of “ordinary” unfair dismissal and claims of discrimination arising from disability (section 15 of the Equality Act 2010) and failure to make reasonable adjustments (sections 20 and 21).

[9]The respondent concedes that at all times material to her claim the claimant was a disabled person within the statutory definition because of a back condition.

[10]These remaining claims were due to be heard at a trial over three days commencing on 19 June 2023. Shortly before this hearing, the Tribunal sent out its usual questionnaire to the parties asking them to confirm that the case was ready for hearing. In the absence of a satisfactory response from the claimant’s representative, I issued a strike out warning on the basis that the claim was not actively pursued and/or that the claimant had failed to comply with the Tribunal’s order. A Legal Officer sent this to the claimant directly by email on 8 June 2023 and followed it up with a further email on 14 June 2023. The claimant replied asking that the case not be struck out.

[11]In light of this exchange of correspondence, Employment Judge Quill postponed the Final Hearing but listed this Public Preliminary Hearing instead to decide whether the case should be struck out because it has not Case Number: 3300779/2021 3 been actively pursued, or because orders have not been complied with or that a fair trial is no longer possible. The issues in the case

[12]At the beginning of the hearing, I asked the claimant what her case was about.

[13]The claimant told me that she has a chronic back condition due to slipped discs. She has required surgery more than once with the first procedure in early 2022. She was frank in saying that she could no longer drive a bus because of her condition.

[14]The claimant said that it was unfair to dismiss her on ill health grounds, despite having been off work for more than a year at the date of her dismissal, as there was other work available which she could have done. She identified this as carrying out health and safety inspections of buses (something which was of particular importance during the pandemic) and continuing with her trade union and health and safety representative duties.

[15]It appeared to me, therefore, that there were legally and factually straightforward claims of ordinary unfair dismissal, discrimination arising from disability (where the issue was likely to be justification turning on the same evidence as the unfair dismissal claim), and failure to make reasonable adjustments where the relevant provision, criterion or practices was likely to be being able to drive a bus.

[16]There are evidential issues about whether and when the claimant would have been sufficiently fit to do the alternative work she describes and whether or not the respondent had enough of a requirement for it. The parties’ submissions

[17]I asked the claimant to explain why she had failed to comply with the Tribunal’s orders for preparation for the final hearing. She told me that she had entrusted these matters to her representative but he had failed to carry them out and had failed to keep in contact with her about them. For example, she said, she only received copies of the deposit orders made in November 2022 from her representative in April 2023 by which time the payment date had passed. The Tribunal had sent these orders to the parties in December 2022.

[18]Ms Mosley-Ford contended that the claim should be struck out because it has not been actively pursued and, she suggested, a fair hearing is, or may become, no longer possible.

[19]Ms Mosley-Ford said, and I accept, that the only step the claimant has taken is to provide a schedule of loss. I have seen this and it can be best described as a generic and optimistic document. The claimant has not Case Number: 3300779/2021 4 disclosed any documents (unlike the respondent) and witness statements have not been exchanged.

[20]As far as the question of a fair trial is concerned, she argued that if the case is permitted to proceed it is possible that there will be further changes to it and with the passing months and years witnesses’ memories will fade. She acknowledged however, that the respondent’s witnesses, the dismissing and appeal officer, remain as employees and that the documents underlying the dismissal process are available.

Conclusion

[21]My power to strike out a claim is contained in rule 37 of the Employment Tribunals Rules of Procedure which says as follows: 37 (1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response 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 or response (or the part to be struck out). It is well-established that striking out a claim is a draconian step not to be taken lightly. This is because, once a case is struck out, that party’s opportunity to receive a judicial determination on the underlying merits of the claim ends.

[22]In my judgment this case is a classic example of the difficulties which raise when a representative over-complicates their client’s initial claim rather than focussing on what it is really about: whether it was unfair and discriminatory to dismiss this disabled claimant notwithstanding that she had been absent from work for more than a year and was no longer able to safely drive a bus.

[23]I am satisfied that there has been a significant failure on the claimant’s side to comply with the Tribunal’s orders. I am also satisfied from what I have heard that those failures lie principally with the claimant’s representative and not with her. I say principally because there is some force in Ms Mosley- Ford’s submission that Ms Roberts’s role as a trade union representative suggests some knowledge and, possibly, experience of Employment Tribunal processes. Ultimately, however, the claimant had a representative Case Number: 3300779/2021 5 and it appears that he failed to keep her informed of the progress of this litigation or to take sufficient steps to protect her interests in the litigation. I referred the parties in this context to the recent decision of the Court of Appeal in Phipps v Priory Education Services Limited

[2023] EWCA Civ 652

[24]I do not think that this is one of those cases where there was a deliberate and abusive breach of orders.

[25]The test that I have applied in the circumstances of this case therefore is whether a fair trial of the issues set out above remains possible. The Tribunal’s Rules are not intended to place barriers in front of parties, but parties are required to conduct their litigation proportionately so I have paid full regard to the additional expense and inconvenience caused to the respondent by the claimant’s failures in this case in reaching my conclusion.

[26]For all of that, I am satisfied that a fair hearing is still possible, particularly having regard to the limited and much more realistic types of claim remaining before the Tribunal. As far as the evidence for a final hearing is concerned, the responded retains its witnesses and documents and the claimant has confirmed that it will just be her and, she hopes, the union representative who accompanied her at the grievance and dismissal meetings to give evidence on her side.

[27]I am not therefore going to strike out the claim, notwithstanding the failure of the claimant to be adequately prepared for the full merits hearing today.

[28]I have relisted the final hearing and made case management orders in respect of it and these are set out in a separate document. GEORGE FOXWELL