Miss D Bhowmick-Simpson v Secretary of State for Justice: 3300929/2024 and Others

EMPLOYMENT TRIBUNALS

Case No 3300929/2024

Between

Miss D. Bhowmick-SimpsonClaimant

Secretary of State for JusticeRespondent

Before

Employment Judge Douse

In person for claimant

Date 3 December 2024

JUDGMENT

[1]The Claimant’s complaint of indirect discrimination has no reasonable prospects of success, and is dismissed. ______________________________ Employment Judge K Douse Dated: …3 December 2024…………… Sent to the parties on: 12/12/2024 For the Tribunal Office – N Gotecha Case Numbers: 3300929-30/2024 2301685-86/2024 Note: Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision.

[2]Case Numbers: 3300929-30/2024 2301685-86/2024 : EMPLOYMENT TRIBUNALS Claimant(s) Respondent Ms D. Bhowmick-Simpson(1) AND Secretary of State for Justice Ms F. Ferguson

(2) HEARD AT: Watford Tribunal ON: 25 November 2024 (by CVP) BEFORE: Employment Judge Douse (Sitting alone) Representation: For First Claimant: In person For Second Claimant: In person For Respondent: Ms C. Jennings, Counsel

[3]RESERVED JUDGMENT AT A PRELIMINARY HEARING The judgment of the Tribunal is that: 1. The First Claimant’s application to amend her claim to include a complaint of victimisation is refused Case Numbers: 3300929-30/2024 2301685-86/2024 :

REASONS

[1]During discussion at a previous preliminary hearing on 2 September 2024, Employment Judge Daley identified that the first Claimant was potentially referring to an additional claim that would require an amendment application. This is referred to in the Case Management Orders as harassment [ ] and harassment/victimisation on grounds of race [ ].

[2]The first Claimant was ordered to make a written application setting out full particulars of the amendment sought by 23 September 2024.

[3]The hearing today was then listed to consider the first Claimant's amendment application, and to deal with case management more generally. Procedure, documents, and evidence heard

[4]In advance of the hearing I was provided with an electronic bundle by the Respondent – numbers contained within [ ] in this judgment are to pages within this bundle. Included within the bundle was: 4.1. An undated letter from the Claimant to the Tribunal requesting an amendment to her claim to add a complaint of victimisation [59]; 4.2. A document titled “Amendment of Claim (Victimisation)” [44-47]; 4.3. A document titled “Grounds of Claim” [48-57].

[5]I noted that in the draft list of issues that was provided following the last preliminary hearing that there was reference to the first Claimant's amendment application being related to a whistleblowing claim – Ms. Jennings confirmed that was her understanding. However, the first Claimant confirmed that it is a victimisation claim that she wants to add to her claim, so I proceeded on that basis.

[6]Unfortunately, despite the written application and additional claim details (which had been ordered as further and better particulars for other claims), there was Case Numbers: 3300929-30/2024 2301685-86/2024 : insufficient information about w hat the first Claimant was relying on as her protected act(s) and detriment(s).

[7]I spent a long time with the first Claimant extracting the necessary detail from her, and ultimately got the following information: 7.1. Protected acts: a) Submission of a grievance on 6 May 2021; b) Submission of a grievance between 21 & 29 March 2023; c) Submission of an appeal (GRV1) on 22 June 2023; d) Submission of a grievance on 14 September 2023 7.2. Detriments: a) Being subjected to a disciplinary procedure from 21 March 2023, including an interview on 18 April 2023 (protected act (a)); b) Delay in dealing with the disciplinary proceedings (protected act (b)). c) Stress caused by the disciplinary proceedings and delay.

[8]The Claimant did not specify any detriments related to alleged protected acts (c) or (d).

[9]Further details of these alleged acts and detriments are contained within the facts section below.

Findings of fact

[10]On 6 May 2021 the first Claimant submitted a grievance. Although I was not provided with a copy of this, the first Claimant told me that: 10.1. This related to the “E3 proceedings” (re-evaluation of the banding of probation prosecutors); 10.2. There were no allegations of race discrimination within the grievance. Case Numbers: 3300929-30/2024 2301685-86/2024 : 11. The first Claimant alleges that she experienced the following thing(s) following the submission of the grievance on 6 May 2021: 11.1. Being subjected to a disciplinary procedure from 21 March 2023, including an interview on 18 April 2023.

[12]At some point between 21 & 29 March 2023, the first Claimant submitted a further grievance. Although I was not provided with a copy of this, the first Claimant told me that: 12.1. This related to her being subject to disciplinary proceedings; 12.2. There were no allegations of race discrimination within the grievance.

[13]The first Claimant alleges that she experienced the following thing(s) following the submission of the appeal in March 2023: 13.1. Delay to/prolonging of her disciplinary proceedings.

[14]On 22 June 2023 the Claimant submitted an appeal (GRV1). Although I was not provided with a copy of this, the first Claimant told me that: 14.1. This related to the E3 outcome decision; 14.2. There were no allegations of race discrimination within the grievance.

[15]The first Claimant does not allege that she experienced any negative treatment following submission of the appeal on 22 June 2023.

[16]On 14 September 2023, the first Claimant submitted a grievance. Although I was not provided with a copy of this, the first Claimant’s position is that this was: 16.1. Regarding Denise Meylan’s conduct; 16.2. In particular, her reference to the Claimant’s race in a previous appeal conclusion

[17]The Respondent confirms that the nature of the grievance included allegations related to the Equality Act 2010, namely race discrimination. Case Numbers: 3300929-30/2024 2301685-86/2024 : 18. The first Claimant does not allege that she experienced any negative treatment following submission of the grievance on 14 September 2023.

The law

[19]Rule 29 “Case management orders The Tribunal may at any stage of the proceedings, on its own initiative or on application, make a case management order. Subject to rule 30A(2) and (3) the particular powers identified in the following rules do not restrict that general power. A case management order may vary, suspend or set aside an earlier case management order where that is necessary in the interests of justice, and in particular where a party affected by the earlier order did not have a reasonable opportunity to make representations before it was made.”

[20]Rule 30 “Applications for case management orders(1) An application by a party for a particular case management order may be made either at a hearing or presented in writing to the Tribunal.

(2) Where a party applies in writing, they shall notify the other parties that any objections to the application should be sent to the Tribunal as soon as possible.

(3) The Tribunal may deal with such an application in writing or order that it be dealt with at a preliminary or final hearing.”

[21]In Vaughan v Modality Partnership

[2021] ICR 535

, the EAT underlined that the core test is the balance of hardship and injustice in allowing or refusing the application which it explained in the following terms: “what will be the real practical consequences of allowing or refusing the amendment. If the application to amend Case Numbers: 3300929-30/2024 2301685-86/2024 : is refused how severe will the consequences be, in terms of the prospects of success of the claim or defence; if permitted what will be the practical problems in responding.” It will therefore be necessary for the parties to make submissions on the specific practical consequences of allowing or refusing the amendment sought.

[22]In determining such an application a Tribunal must conduct a careful balancing exercise of all relevant factors. In Selkent Bus Co v Moore

[1996] ICR 836

, the EAT outlined the following three areas of consideration:(1) the nature of the amendment, in particular whether it was, at one end of the scale, a mere relabelling of facts already pleaded, or at the other, a wholly new claim;

(2) the effect of the amendment on a time limit, in particular whether made out of time; and

(3) the timing and the manner of the application. These are examples of factors that may be relevant to an application and should not be taken as a checklist.

[23]A Tribunal may also take account of the merits of the claim, having made such an assessment by reference to identifiable factors that are apparent at the preliminary hearing, taking account of the fact that it does not have all the evidence before it and is not conducting the trial (see Kumari v Greater Manchester Mental Health NHS Foundation Trust

[2022] EAT 132

[24]Where an application raises arguably new causes of action a Tribunal should consider the extent to which the new complaints are likely to involve substantially different areas of enquiry and the greater the differences between the factual and legal issues raised the less likely it will be permitted (see Abercrombie Yeah v Aga Rangemaster Ltd

[2013] EWCA Civ 1148

, CA).

[25]Section 27 Equality Act 2010 “(1) A person(a) (A) victimises another person

(b) (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act. (2) Each of the following is a protected act— Case Numbers: 3300929-30/2024 2301685-86/2024 : (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act;

(d) making an allegation (whether or not express) that A or another person has contravened this Act. (3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. (4) This section applies only where the person subjected to a detriment is an individual. (5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.” Submissions

[26]The parties made oral submissions which are summarised as follows: Claimant

[27]The reason all of the details that have now been provided were not in the original claim form is because she thought only a summary of the main issues was required.

[28]There is no reference to victimisation at all on the claim form because she was so focused on the race and wages issues. She only realised that she needed to include everything when EJ Daley pointed this out at the last hearing. Case Numbers: 3300929-30/2024 2301685-86/2024 : 29. In relation to time limits, it was a long internal process with interlinked issues, that is still ongoing.

[30]There is sufficient time before the final hearing in June 2026 to deal with any additional preparation, but there should be no need for additional witnesses as the same individuals are involved in the other claims.

[31]The Tribunal will benefit from hearing all of the evidence to get a full picture of what was happening. Respondent

[32]None of the details are included in the claim form because the first Claimant did not believe that she was treated that way because of her race. This supported by her own words: 32.1. She says “I never raised this in my case” [10], in relation to the appeal outcome on 30 August 2023 stating “findings stated: ‘Indirect Discrimination - the majority of EO's in London affected by the E3 downgrade are people of colour which must be known to the employer and therefore this action has clearly been discriminatory.’ This was raised in your stage 1 grievance.” 32.2. In the amendment application the first Claimant does not refer to race here. She says [46]: “Claim In the circumstances set out above the Claimant was treated less favourably as a result of being involved in the E3 appeal process and raising concerns and grievances about the process and the way she had been treated throughout the process, contrary to s27 of the Equality Act 2010.” 32.3. That document goes on to say [47]: “The Claimant feels that the Respondents singled her out because she had submitted a grievance relating to the E3 process.” This is not related to race. 32.4. The first Claimant's ‘Grounds of claim’ document says [50]: “The Claimant did not raise any issues regarding her race. The Claimant has Case Numbers: 3300929-30/2024 2301685-86/2024 : never used the words ‘people of colour’ in any of her grievances especially her stage 1 grievance.

[33]The only grievance that refers to race, and could amount to a protected act, is the one dated 14 September 2023, but there are no detriments claimed in relation to this. Therefore, none of the complaints can amount to victimisation. The first Claimant has mischaraterised this as victimisation.

[34]There are already jurisdictional issues relating to time limits with the existing complaints and these are now a further 11 months out of time.

[35]The Respondent – a public body - has already had to amend their grounds of resistance once – if the amendment is allowed a third version would need to be produced. This tips the balance of prejudice towards the Respondent.

Conclusions

[36]I am not persuaded by the Claimant’s submission that the amendment should be permitted because she had misunderstood what was needed in the original claim. I could understand if the detail wasn’t necessarily full enough, and needed some further and better particulars, but there is absolutely nothing within the original claim to indicate that there was any thought of a victimisation claim at the time of presenting the claim. These are therefore new complaints that are significantly out of time. In any event, as the Respondent points out, there are fundamental issues with the nature of the amendment(s) sought, and therefore the merits of these complaints.

[37]The first Claimant’s grievance dated 21 May 2021 does not amount to a protected act because nothing within the grievance relates to a complaint under the Equality Act 2010. Therefore, there are no reasonable prospects of a complaint of victimisation succeeding. This complaint cannot proceed.

[38]The first Claimant’s grievance submitted in March 2023 does not amount to a protected act because nothing within the grievance relates to a complaint under Case Numbers: 3300929-30/2024 2301685-86/2024 : the Equality Act 2010. Therefore, there are no reasonable prospects of a complaint of victimisation succeeding. This complaint cannot proceed.

[39]The first Claimant’s appeal dated 22 June 2023 does not amount to a protected act because nothing within the grievance relates to a complaint under the Equality Act 2010. Therefore, there are no reasonable prospects of a complaint of victimisation succeeding. This complaint cannot proceed.

[40]The first Claimant’s grievance dated 14 September 2023 does amount to a protected act. However, as she alleges no detriment following the protected act. Therefore, there are no reasonable prospects of a complaint of victimisation succeeding. This complaint cannot proceed.

Summary

[41]The first Claimant’s application to amend her claim to include complaints of victimisation is refused.

[42]Case management orders regarding the remaining claims will be sent out separately.