E Curtis v Quantum Care Ltd: 3303903/2019 and others

EMPLOYMENT TRIBUNALS

Case No 3303903/2019

Between

E CurtisClaimant

Quantum Care LtdRespondent

Before

Employment Judge Shastri-Hurst

In person for claimant

Mr McHugh (instructed by counsel) for respondent

Date 26 September 2022

JUDGMENT

[1]All claims against Quantum Care (Developments) Ltd are dismissed;

[2]Quantum Care Ltd is substituted to be the sole Respondent to the claims brought by the Claimant consolidated under the claim number 3303903/2019;

[3]The Respondent’s application that the Claimant’s claims be struck out because they have no reasonable prospect of success is in part successful, regarding Allegations 1, 2, 3, 4, 5, 6, 7, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22;

[4]The Allegations listed at paragraph 3 above stand struck out;

[5]The Respondent’s application that the Claimant should pay a deposit as a condition of pursuing her allegations succeeds in part, in relation to Allegation 8;

[6]The

REASONS

[1]The Claimant has presented a total of four ET1 claim forms in this matter so far, and I have heard today that a fifth one has been filed at Watford ET recently. The claim forms currently before the Tribunal are as follows: 1.1. 16 February 2019 (case no. 3303903/2019) – brought against Quantum Care Ltd, claiming unlawful deductions of wages. ACAS Early Conciliation period 17 December 2018 to 17 January 2019; 1.2. 1 April 2019 (case no. 3313477/2019) – brought against Quantum Care (Developments) Ltd, claiming disability discrimination and victimisation under the Equality Act 2010, and breach of contract, citing also various other Acts. ACAS Early Conciliation period 28 February 2019 to 1 March 2019; 1.3. 4 October 2019 (case no. 3324255/2019) – brought against both Quantum Care Ltd and Quantum Care (Developments) Ltd, claiming disability discrimination and victimisation, whistleblowing, constructive unfair dismissal under the Employment Rights Act 1996 and pay claims, again citing various other Acts. ACAS Early Conciliation period 4 September 2019 to 4 September 2019; 1.4. 25 November 2019 (case no. 3326392/2019) – this is an exact copy of the third ET1, and I am told there is no corresponding ACAS Early Conciliation certificate.

[2]By application dated 28 September 2020 the Respondent made an application to strike out the Claimant’s claims in their entirety or, in the alternative, seeking a deposit order – A/1351-1358. By Notice of Hearing of 8 November 2020, this matter was listed for a one day open preliminary hearing to consider the following issues – A/1480: 2.1. What claims, if any, have no reasonable prospect of success and may be struck out; and, 2.2. What allegations/arguments have little reasonable prospect of success? A deposit may be ordered as a condition of those allegations or arguments proceeding.

[3]In order to assist me in my decision, I had a voluminous number of documents. From the Respondent I had: 3.1. A bundle named “consolidated RRL (recommended reading list) paginated OCR EC v QC Ltd Section A-D” of 452 pages, plus index (I refer to this as “the Consolidated Bundle” – where I refer to page numbers in the body of these reasons, they are to pages within this bundle unless otherwise stated); 3.2. A bundle named “paginated application papers for PHR” of 66 pages, plus index (I refer to this as “the Application Bundle”); 3.3. Mr McHugh’s written submissions dated 28 January 2021; 3.4. Four additional pdf bundles, named Section A, B, C and D respectively, totalling 2221 pages in total (I will refer to these documents as A/X where A is the section and X is the page number).

[4]From the Claimant I had the following documents: 4.1. A document entitled “The Claimant’s Objection to the Respondent’s Application to Strike Out This Case” of 28 pages; 4.2. Two appendices dated 28 February 2020 and 3 March 2020; 4.3. A draft list of directions and an agenda.

[5]I made it clear to both parties that I had by no means read all the papers, and that they would need to take me to any particular pages that they wished me to take into account in my decision making. I had read some of the documents in advance, namely all the pleadings (up to p158 of the Consolidated Bundle) and the Application Bundle. I had also briefly considered the Respondent’s skeleton and the Claimant’s objection. I took an hour of reading time on the morning of the hearing to more thoroughly read the Respondent’s skeleton and the Claimant’s Objection, as well as their respective attachments. The scope of the Claimant’s claims

[6]This is the first time that this matter has come before the Tribunal, and therefore there has been no distillation of the issues at play within the Claimant’s various claims. The Respondent has attempted to distil down the Claimant’s claims into a schedule found at Appendix B of the Application Bundle (“the Schedule”). This Schedule helpfully sets out where in the various claim forms the claims/allegations may be found. Each allegation is numbered and I will use these numbers in the body of this Judgment, referring to “Allegation 1” and so on. I have attached to this Judgment a copy of the Allegations listed within the Schedule, for ease of reference.

[7]The Schedule lists 22 allegations in total. I asked the Claimant whether she agreed that this Schedule accurately reflected the headlines of all her claims. She stated that there was detail missing. I explained that, when it came to her submissions, she could tell me about any additional claims that she thought were missing from the Schedule.

[8]On the commencement of the Claimant’s submissions, I asked her whether everything I needed to know about her claim was in her claim forms and Further and Better Particulars: her answer was that she was not sure. I have now read all of the claim forms, and all documents tagged within the index of Sections A-D as “Further and Better Particulars” in considering the allegations within the Schedule. In that way, I consider that I have seen everything that can be said to equate to pleadings within the Claimant’s case.

[9]The Claimant, during her submissions, stated that the Schedule left out her claims of “negligence” and “bullying and harassment”. In fact, negligence (duty of care) and harassment do appear in the Schedule. It is correct that bullying as an allegation does not appear in the Schedule. I explained to the Claimant that the Tribunal does not have jurisdiction to deal with claims of negligence and bullying.

[10]The Claimant did not raise any other specific claims other than those in the Schedule, with the detail appearing in her pleadings. I have therefore taken the Schedule as a framework covering the headline allegations, and have sought where possible the particulars of those claims in the Claimants pleadings (i.e. the four claim forms and Further and Better Particulars).

HEARING

[11]This hearing was listed for one day. The hearing was entirely remote. On one occasion, the Claimant connection failed, and so we halted proceedings and Mr McHugh and his instructing solicitor disconnected so that they were not left alone with me in the remote hearing room. Everyone managed to reconnect and proceedings continued without further technical difficulty. I am satisfied that the hearing was fair.

[12]The Claimant represented herself. The Respondent was represented by Mr McHugh, with occasional assistance from his instructing solicitor, Mr Donaldson. I allowed Mr Donaldson to speak directly to me rather than via Mr McHugh on a couple of occasions, as I recognise that, in a remote setting, it is not a straight forward matter for counsel to obtain instructions from their instructing solicitor quickly, and the solicitor may well be able to answer the Tribunal’s enquiry directly.

[13]I heard submissions from Mr McHugh and the Claimant. I also heard oral evidence from the Claimant regarding her financial means, should I need to consider them for the purposes of a deposit order. PRELIMINARY ISSUES Identity of Respondent

[14]As set out above, the Claimant’s four different claim forms have been issued against a combination of two respondents, Quantum Care Ltd and Quantum Care (Developments) Ltd.

[15]It was agreed between the parties that the Claimant’s employer was Quantum Care Ltd, and that this entity is the correct respondent for all four of the Claimant’s claims.

[16]I have therefore made an order to dismiss the claims against Quantum Care (Developments) Ltd and, where necessary, substitute Quantum Care Ltd, to ensure that Quantum Care Ltd is the Respondent for all of the Claimant’s claims, all consolidated under case number 3303903/2019. Documents

[17]The Claimant raised with me that, as she had only found out a couple of days ago that the bundles needed to be in electronic form, she had hard copy papers that she had not been able to convert, and was concerned that I needed to see them. The Claimant had not done an index to these documents.

[18]As opposed to holding up proceedings, or adjourning, and bearing in mind the copious and disproportionate amount of documents already before the Tribunal, I explained to the Claimant that, as and when she considered that she had a document that was relevant that was not already before the Tribunal, she could tell me what it was and, if necessary, show me on screen or read out the document to me.

[19]Both parties were content that this was a satisfactory approach to these documents.

ISSUES

[20]As set out above, and as can be seen at A/1480, the two issues to be determined today were: 20.1. What claims, if any, have no reasonable prospect of success and may be struck out; and, 20.2. What allegations/arguments have little reasonable prospect of success? A deposit may be ordered as a condition of those allegations or arguments proceeding. LAW Strike out

LAW

[21]The Respondent applies to strike out the Claimant’s claims under two grounds found within r37(1) of Sch 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”). R37 provides as 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 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 has been scandalous, unreasonable or vexatious.

[22]The Tribunal has the power to make deposit orders against any specific allegations or arguments that it considers has little reasonable prospect of success under r39 of the Rules: 39(1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim…has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. 39(2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.

[23]For discrimination claims, the starting point regarding case-law is Anyanwu and anor v South Bank Student Union and anor

[2011] ICR 391

UKHL. Here, the House of Lords emphasised that discrimination claims are often fact-sensitive and require close examination of the evidence at a full merits hearing.

[24]I am also assisted by the case of Balls v Downham Market High School and College

[2011] IRLR 217

, in which Lady Smith held: When strike out is sought or contemplated on the ground that the claim has no reasonable prospects of success, the structure of the exercise that the tribunal has to carry out is the same; the tribunal must first consider whether, on a careful consideration of all the available material, it can properly conclude that the claim has no reasonable prospects of success. I stress the word “no” because it shows that the test is not whether the claimant’s claim is likely to fail nor is it a matter of asking whether it is possible that his claim will fail. Nor is it a test which can be satisfied by considering what is put forward by the respondent either in the ET3 or in submissions and deciding whether there written or oral assertions regarding disputed matters are likely to be established as facts. It is, in short, a high test. There must be no reasonable prospects.

[25]Mitting J in Mecharov v Citibank NA

[2016] ICR 1121

EAT provided the following guidance at paragraph 14: …the approach that should be taken in a strike out application in a discrimination case is as(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.

[26]However, there are some caveats to the general approach of caution towards strike out applications. In Ahir v British Airways plc

[2017] EWCA Civ 1392

CA, it was held that, when a tribunal is satisfied that there are no reasonable prospects of the facts needed to find liability being established, strike out may be appropriate. This is caveated by the need to be aware of the danger of reaching that conclusion without having heard all the evidence. Deposit order

[27]The rationale of a deposit order is to warn a claimant against pursuing claims with little merit, which may leave them open to a risk of costs should they proceed with the claim and lose on the same basis as identified as the reason for the making a deposit order.

[28]The purpose of such an order is not to restrict disproportionately access to justice, hence any order made must be for an amount that is affordable by a party, and can be realistically complied with – Hemdan v Ishmail and anor

[2017] IRLR 228

[29]If I decide to make a deposit order, I must give reasons, not only for the fact of the order, but also for the amount of that order – Adams v Kingdon Services Group Ltd

EAT/0235/18

. FINDINGS OF FACT Employment

FINDINGS OF FACT

[30]I have only made findings of fact so far as they are relevant to the applications before me. Where I have not covered certain facts, it is because they are not relevant to the issues I have set out above.

[31]I have not heard any oral evidence on these matters from either party (other than from the Claimant on the limited issue of her means). The facts that follow are therefore based solely on the documents I have seen. These findings will therefore, inevitably, be incomplete. It will be for the Tribunal of the final merits hearing to make full findings on what actually occurred between the two parties throughout the relevant chronology. Any findings set out below are therefore not binding on that Tribunal.

[32]The Claimant began working for the Respondent on 12 August 2013 as a carer. Her Statement of Particulars is at p1517. Of those terms, the following are of potential relevance: Clause 5: “Under your contract of employment, you may be required or permitted to work at or from any of Quantum Care’s Homes. …” Clause 7: “… The Staff Handbook and all the sections of the HR Manual referred to in the Staff Handbook form part of your contract of employment.” Clause 16: “… Your entitlement to sick pay is subject to compliance with Quantum Care’s rules for reporting absence and for observing the other requirements of the Sick Pay Scheme as set out in the Staff Handbook and HR Manual.” Clause 19: “… Quantum Care reserves the right to suspend you for no longer than reasonably necessary for the purposes of investigating any allegation of misconduct or neglect against you.”

[33]I have also had sight of parts of the HR Manual, including the sick pay policy, at p1604/1606, which provides as follows: Statutory Sick Pay (SSP) All employees have a right to SSP as long as they earn more than the lower earnings level (Payroll can confirm the current rate). SSP is not, however, payable for the first three qualifying days of absence. A qualifying day is a day on which you are normally expected to work under your contract of employment. … Occupational Sick Pay (OSP) OSP is sick pay over and above the statutory amount paid by Quantum Care. This is entirely at the discretion of management but will not be unreasonably withheld as long as you have conformed to the notification requirements and have produced any necessary medical certificates, including selfcertificates. … … If you take sickness absence after a disciplinary investigation or formal disciplinary process involving you has been started by Quantum Care, then you will not usually receive any occupational sick pay. In exceptional circumstances, the Director of Human Resources and Training or the Director of Operations may at their discretion agree to pay occupational sick pay.

[34]The last paragraph cited above (starting “If you take sickness absence”) was confirmed on 16 January 2019 by Margaret Lillie, a Unison Convenor, to be a variation regarding company sick pay (“CSP”) that was agreed as part of a consultation with the union in 2014 – p1562.

[35]On 8 October 2013, the Claimant signed to show that she understood the terms and conditions of her employment, and that she had received a copy of the Staff Handbook – p1521. Her signature also appears on a document confirming receipt of the Staff Handbook on 14 September 2016 – p1522. The Claimant today told me that she did not sign this; she could not however explain how her signature appeared on the document. I note that the signature and handwriting on pp1521 and 1522 are extremely similar. I therefore find that the Claimant signed both these documents to confirm receipt of a Staff Handbook in both 2013 and 2016. Disciplinary process leading to sickness absence

[36]On 3 August 2018, the Claimant sent a text message to Ms Karen Parker, the Regional Manager, complaining about Mrs Sharon Howe (Home Manager) and her treatment of some carp in a fish pond for which the Respondent was responsible. On 4 August 2018, a disciplinary process was commenced against the Claimant due to the alleged inappropriate nature of that message.

[37]Mrs Howe suspended the Claimant on 4 August 2018: this was confirmed by the Respondent in a letter dated 13 August 2018 – p 1636. The allegation was recorded as being that the Claimant had “allegedly [sent] an inappropriate message about your Home Manager, Sharon Howe to the Regional Manager, Karen Parker”.

[38]On 13 August 2018, the Claimant raised a grievance which is at p1637. On 8 November 2018, the Respondent sent the Claimant a letter informing her that, as of 12 November 2018, her suspension would be lifted and, although there was a disciplinary case to answer, any sanction would be short of dismissal (i.e. the conduct did not reach the level of gross misconduct) – p1643-1645.

[39]That letter also provided that, as of 12 November 2018, the Claimant was required to return to work; however, she was required to work at another of the Respondent’s care homes. The letter pointed out the mobility clause within the Claimant’s contract of employment (cited above). On 12 November 2018, the Claimant sent the Respondent a fit note stating that she was unfit to work: the fit note is dated as being issued on 12 November 2018, but is backdated from 1 November to 30 December 2018 – email at C/1646, fit note at D/2218.

[40]Due to the Claimant being suspended up to and including 11 November, and the Claimant only notifying the Respondent of her fit note on 12 November, I find that the Claimant was on sickness absence leave from 12 November 2018, not from 1 November 2018. The Claimant did not return to work but remained on sick leave.

[41]Upon receipt of the Claimant’s fit note, the Respondent replied by letter of 21 November 2018 – p1647. In that letter, the Respondent records some of the terms within the Staff Handbook regarding sick pay: If you take sickness absence after a disciplinary investigation or formal disciplinary process involving you has been started by Quantum Care, then you will not usually receive any occupational sick pay.

[42]The Claimant submitted two claim forms, dated 16 February and 1 April 2019. Upon acceptance of the second claim form (3313477/2019), EJ McNeil QC directed that (A/47): Only the claims for disability discrimination and breach of contract are accepted.

[43]On 25 April 2019, the first and second claims were consolidated – A/52.

[44]On 17 July 2019, the Claimant resigned by letter at pp1851-1875, having not returned to work since being signed as unfit to work on 12 November 2018.

[45]On 26 July 2019, EJ Lewis directed that the Claimant clarify if she has a disability and, if so, what it is – A/72. No answer was ever received to this request.

[46]On 4 October 2019, the Claimant submitted her third ET1, followed on 25 November 2019 by her fourth ET1. It is noted that there is no ACAS Early Conciliation certificate for this fourth claim. It appears however that this fourth claim is a carbon copy of the third claim and so adds nothing further.

[47]Throughout this chronology, the Respondent had submitted the requisite ET3 forms with Grounds of Resistance in time. The final Consolidated Grounds of Resistance, covering all claim forms was filed on 6 January 2020 – A/136- 154.

[48]On 3 March 2020, Regional Employment Judge Foxwell ordered that all four of the Claimant’s claims be consolidated under claim number 3303903/2019 – A/188.

[49]Over the life of this litigation thus far, the Claimant has provided several documents containing Further and Better Particulars of her claims as follows: 49.1. 28 February 2020 – A/173-187; 49.2. 24 July 2020 – A/997-1009; 49.3. 24 July 2020 – A/1010-1018; 49.4. 21 August 2020 – A/1019-1336 49.5. 26 September 2020 – A/1341-1348.

[50]I have read the above Further and Better Particulars. The Claimant’s means

[51]The Claimant has not found employment since she left the Respondent, however she does receive Universal Credit of roughly £880 per month. This is her only source of income. The Claimant has around £2000 in savings. Her home rental payments come out of her Universal Credit, leaving roughly £320 each month for all other bills.

[52]The Claimant owes £1,700 on her credit card and £1,250 in her overdraft: she is currently not paying back her credit card debt, and pays £1 per day as overdraft fees.

[53]Taking into account all of the Claimant’s other monthly outgoings (food, mobile phone, broadband, TV and so on) she estimates she has around £150 left as disposable income at the end of each month. Some of that money is spent on items to help her advance this case, such as a printer.

[54]She owns no property. She has an old-style motorcycle that only carries the value of the engine, as she bought it to work on it with a friend. The Claimant estimates that the engine is worth around £600. Disability

[55]The Claimant brings allegations of disability discrimination at Allegations 3, 4, 5, 6 and 7.

[56]In order to claim disability discrimination under the Equality Act 2010, the Claimant must satisfy the test within s6 of that Act. S6 provides as follows: 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.

[57]The definition of “long-term” is set out at s2 of Schedule 1 to the Equality Act 2010, and provides: (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.

[58]The definition of “substantial” is set out at s212 Equality Act 2010, and means “more than minor or trivial”.

[59]Given that the Claimant had not replied to EJ Lewis’ request to clarify her disability, I invited her to do so towards to beginning of the hearing. The Claimant explained she had a road traffic accident on 13 January 2017 and had recovered by January 2018. She relied upon her injuries as a physical impairment.

[60]She also stated that, from some of the Respondent’s correspondence, it appeared that they perceived her to have a mental impairment. Physical impairment

[61]I therefore turn to the Claimant’s medical evidence to consider whether the Claimant has no or little prospect of proving that she is disabled as defined above. The Claimant’s medical evidence is found in Section D – D2067-2221. I have reviewed these documents, which show the following: 61.1. D/2069 – C had a motorcycle accident on 13 January 2017; 61.2. D/2069 – she was examined on 16 February 2017, which led to a medical report that detailed the following injuries: Chest wall; Left side thigh; Left foot; Left lower leg; Right foot; Right toe nail; Left shoulder; Left side hand; Left side foot; and, Psychological symptoms of travel anxiety/discomfort and nausea. 61.3. The report’s prognosis was that the Claimant would heal within 7 months of the accident. 61.4. D/2112 – Occupational Health Physician’s (“OHP”) report of 19 June 2017 – regarding her daily living, the Claimant could do housework by herself, could carry shopping (using right arm for heavier items) and could walk 3-4 miles without issue. She was by this stage riding her motorbike again. She shifted her weight from one side to the other when standing for any lengthy period. The physical examination reported normal range of movement for the Claimant’s back and neck and upper limbs. The only point of note was a minimal weakness of the left ring finger. The OHP determined that she was medically fit to return to work. Various reasonable adjustments and a phased return to work were recommended (avoiding heavy lifting for example). 61.5. D/2130 – OHP report dated 4 August 2017. This related to a muscle strain that the Claimant had suffered to her chest when handling a resident in July 2017. The Claimant’s fit note expired on 14 August 2017, but the OHP advised a phased return to work; 61.6. D2141 – OHP report 5 October 2017. The Claimant was still reporting chest pain. It was anticipated that the Claimant would be back to her normal hours within 2 months. She was medically fit to return to work, but with a phased return & reasonable adjustments. 61.7. D/2144 – Medical report of 12 October 2017. This report gives a prognosis of full recovery by 13 months from the accident. The residual pain to left thigh and chest wall at this point was moderate on an intermittent basis. All other symptoms had resolved. Examination was normal other than some tenderness. 61.8. D/2180 – OHP report 26 February 2018. This report actually relates to a back injury the Claimant says she suffered in January 2018 at work. This report does however state that “with respect to the pain she was getting in the left chest wall and left shoulder area, this has now resolved. The only symptoms she still gets, as a result of the road traffic accident she was in, is a slight feeling of stiffness in the left thigh which lasts for a few minutes once a week.” 61.9. D/2202 – Medical report (Orthopaedic Surgeon) dated 20 June 2018 records that the Claimant had 7 months off work and that the Claimant suffered a soft tissue injury to her left leg and left shoulder and chest. The majority of symptoms settled down in 12 months. The physical examination reported normal outcomes, other than some subjective pain in the left hip and clavicle. At the time of the report, the surgeon recorded that the Claimant had recovered well and suffered ongoing symptoms which gave intermittent discomfort. The prognosis was that the Claimant would be back to pre-injury status within 3 months from the date of the examination.

[62]On the medical evidence, I find that, from at the latest October 2017, ten months after the accident, any residual pain was intermittent and minor.

[63]The Claimant told me that she had recovered from the accident by January 2018. This ties in with the OH report from February 2018. Mental impairment

[64]It is the Claimant’s case (and indeed the Respondent’s case) that the Claimant does not suffer from a mental impairment.

[65]The Claimant’s claim regarding her mental health is that the Respondent (Mrs Howe particularly) believed that the Claimant suffered a mental impairment amounting to a disability. A perceived disability discrimination claim can only be run in the form of a direct discrimination claim pursuant to s13 of the Equality Act 2010.

[66]I note in her second claim form, the Claimant comments as follows – A/45: Emailed email which included Home Manager in Black and White stating my mental status without evidence I have been to a specialist Psychologist in which has cleared any mental health issues, I had to go as I had a motorbike accident January 2017 …[sic]

[67]The Claimant relies upon an email of 8 October 2018 (C/1635), in which Mrs Howe writes: It’s been posted what is up with this person? I truly believe she is in need of mental health support if she stays with the company god knows what it will be next.

[68]The Claimant also reports that Ms Howe (Home Manager) said to the Claimant on one occasion “maybe you are not right in the head” – referenced in the Claimant’s grievance of 13 August 2018 at C/1638.

[69]This is the evidence that the Claimant relies upon to suggest that the Respondent perceived her to have a mental impairment capable of amounting to a disability under s6 of the Equality Act 2010. CONCLUSIONS Unreasonable/vexatious conduct

CONCLUSIONS

[70]As stated at the start of this Judgment, the Respondent seeks to pursue an application to strike out the Claimant’s claims, not only on the basis of lack of prospects, but also on the Claimant’s conduct in pursuing the claim has been unreasonable/vexatious – r37(1)(b) of the Rules.

[71]I do not accept that the Claimant has acted in a way that is vexatious or unreasonable. She is a litigant in person, and although it could be said that she has not assisted the smooth progress of this litigation by the copious paperwork and lack of clarity, I note that there has been relatively little involvement from the Tribunal to date and so she has had little guidance (to the extent permissible by the Tribunal) as to how to better and more clearly formulate her claims.

[72]I therefore reject the application to strike out based on the assertion that the Claimant’s behaviour was vexatious or that she has conducted this litigation in a manner that is unreasonable or vexatious.

[73]I am therefore left to consider whether all or part of her claims have no or little reasonable prospects of success. No reasonable prospects for lack of jurisdiction

[74]Several of the Claimant’s allegations do not fall within the jurisdiction of this Tribunal. I therefore find that those claims have no reasonable prospect of succeeding and are struck out on that basis. I refer to: 74.1. Allegation 11 – Health and Social Care Act 2012; 74.2. Allegation 12 – Human Rights Act 1998; 74.3. Allegation 13 – Defamation Act 2013; 74.4. Allegation 14 – Duty of care (personal injury claim); 74.5. Allegation 15 – Care Act 2014; 74.6. Allegation 16 – Protection from Harassment Act 1997; 74.7. Allegation 17 – Health and Safety at Work Act 1974; 74.8. Allegation 18 – Management of Health and Safety at Work Act 1999; 74.9. Allegation 19 – Breach of data protection legislation.

[75]I note also, under this subsection regarding jurisdiction, Allegation 2. This claim is said to be for a breach of the Trade Union and Labour Relations Act 1992, specifically a failure to disclose information under ss183-184. The detail of this claim can be found at p80 (repeated at p122). Although the 1992 Act does confer some rights on individual employees who then can pursue complaints in the Tribunal, ss183 and 184 do not confer such rights.

[76]Those two sections refer to a right of a trade union to present a complaint to the Central Arbitration Committee. They do not confer on an individual employee a right to bring a claim. Therefore, in relation to Allegation 2, I find that the Claimant has no right of action under those sections, and therefore has no reasonable prospects of succeeding in this claim.

[77]There are then several of the Claimant’s allegations that appear to be aimed at third parties, not the Respondent. Those claims therefore have no reasonable prospect of succeeding against the Respondent. I refer to the following allegations:

[78]This allegation is aimed at Unison and is found in the third ET1 at p80. The allegation reads as follows: Unison not allowing me as a member to have representation from outside the Hertfordshire region when on their advertising states members can and two of the representatives would of [sic] had a conflict of interest. One works in QC head office the other is a [sic] ex Home Manager for Quantum Care. Maggie Lillie the Unison Representative gave me false information then said she would not represent me. I said I did not need her help as I could not trust her nothing personal to Maggie Lillie.

[79]It is the Claimant’s case that Maggie Lillie works for the Respondent. However, Mr Donaldson informed me that Ms Lillie in fact works part time for the Respondent and part time for Unison; she is employed part time by the two separate entities, and paid by them both for the days she does with them respectively. This was not challenged by the Claimant. I therefore find that, in line with such authorities as Kemeh v Ministry of Defence

[2014] EWCA Civ 91

, the Claimant has no reasonable prospects of demonstrating that the Respondent was liable for Ms Lillie’s actions (as a putative agent or something of the sort), when she was acting within her Unison role. When she was so acting, she was acting as an employee of the union, not the Respondent.

[80]Even if I am wrong on the above agency point, Allegation 20 demonstrates no claim against Unison for which the Tribunal has jurisdiction in any event.

[81]This allegation is brought against the CQC. From p80, the allegation reads as CQC have from me in 2015 a serious neglect to a resident never lodged that report or deleted documents lots of complaints go into CQC they are not interested, CQC have stated QC have their own inspectors but cannot answer why. [sic] … CQC advertise on their website the wrong email address so would not receive any email, could not answer that either.

[82]This allegation, although somewhat confused, is clearly an allegation against the CQC, for which the Respondent cannot be liable. The CQC and the Respondent are two entirely separate legal entities: it is not arguable that there is any form of agency relationship between those two entities. There is therefore no reasonable prospect of this claim succeeding against the Respondent.

[83]Allegation 22 is set out at p80-81 and reads as follows: Hertfordshire County Council (HCC) are no [sic] very responsible asked for a FOI many excuses from them worst one was they have no involvement with QC they are their Local Authorities and on their QC complaints procedure, HSE sent a Health and Safety issue towards employees to HCC and they have not even acknowledged that. Iain Macbeath has been to open Anson Court in Welwyn Garden City and at Belmont View care home so that is a contradiction as Iain Macbeath is a director at HCC.

[84]This allegation is squarely placed as being against “HCC”. As with the CQC, the HCC and the Respondent are two entirely separate legal entities. The Claimant has no reasonable prospects of demonstrating that the Respondent is liable for HCC’s actions, and therefore has no prospects of succeeding with this allegation.

[85]Allegations 2, and 11 to 22 therefore are struck out for lack of prospects. Allegations 1 & 3 – 10

[86]Having struck out Allegations 2 and 11 to 22 as having no reasonable prospects of success, I am left with Allegations 1 and 3 to 10 to consider.

[87]This is a claim for breach of contract and/or unlawful deductions from wages regarding sick pay. This is pleaded in the first ET1, in which the Claimant complains of receiving only statutory sick pay (“SSP”), as opposed to company sick pay (“CSP”) for 12 weeks. The Claimant alleges that CSP is provided for in the Staff Handbook. The Claimant’s claim is further particularised at A/23-A/27. It also appears in some Further and Better Particulars provided by the Claimant on 28 February 2020 (A/173). This claim, although not entirely clear, appears to be predicated on the argument that the Claimant was entitled to CSP for the period she was off sick from 12 November 2018.

[88]I have set out above the contractual terms relating to sick pay (SSP & CSP). The payment of CSP is discretionary, and so is not a contractual right. The Claimant therefore has no reasonable prospects of succeeding on a breach of contract claim.

[89]Regarding the unlawful deduction of wages claim, under s13 of the Employment Rights Act, the key issue is what sum is properly payable to the Claimant. Again, I note that CSP is discretionary. The only argument that could possibly be pursued is that the Respondent exercised its discretion not to pay CSP in a manner that no reasonable employer would exercise that discretion. I remind myself of the provision within the Staff Handbook, set out above, stating that, when an employee goes off on sick leave following the commencement of a disciplinary process, then the default position is that the Respondent’s discretion is exercised so as not to pay CSP, except for in exceptional circumstances.

[90]At the time of going off on sick leave, the Claimant was still subject to a disciplinary process (although no longer suspended). Therefore, there are no prospects of her demonstrating that the Respondent exercised its discretion not to pay her CSP in a perverse manner.

[91]Therefore, I find that the Claimant’s claim of unlawful deductions of wages also has no reasonable prospects of succeeding.

[92]This allegation is one of perceived direct disability discrimination regarding Ms Howe. The Claimant alleges that Ms Howe, on several occasions made accusations around the Claimant’s mental health without medical proof – see A/45, A/80, A/177.

[93]Taking the Claimant’s case at its highest, as I must for the purposes of these applications, I cannot say, based on my findings above and the words said to have been used by Mrs Howe, that the Claimant has any prospects of proving that the Respondent perceived her to be disabled.

[94]I accept Mr McHugh’s submission that what was said by Mrs Howe (however ill-advisedly) is a country mile from suggesting that the Claimant is so mentally impaired so as to reach the definition within s6 of the Equality Act 2010.

[95]I therefore find that any claim based on a perceived disability has no reasonable prospects of succeeding.

[96]This allegation is said to be one of direct disability discrimination arising from the Claimant’s injuries following her motorbike accident.

[97]In light of my findings of fact above, I find that, whatever the effects of the Claimant’s injuries had been in the early months following the accident, from around October 2017 the Claimant suffered only intermittent and minor pain. She had fully healed by January 2018. I have based this on the undisputed medical evidence provided within Section D.

[98]The Claimant has no prospects of proving that the effects on her day to day activities were substantial and adverse from October 2017 onwards. She therefore has no prospects of proving that any physical impairment the Claimant did suffer produced substantial adverse effects that were “longterm”.

[99]It follows that the Claimant has no reasonable prospect of succeeding in proving that she was at the relevant time of any discrimination disabled by way of physical impairment.

[100]Therefore, her claim under Allegation 4 cannot overcome the first hurdle of proving that she was disabled.

[101]In any event, it is incredibly difficult to decipher within any of the four claim forms what the Claimant stipulates was less favourable treatment she suffered as a result of her motorcycle injuries. From my reading of her various pleadings, I can see at A/1031 (Further and Better Particulars dated 21 August 2020) that the Claimant claims: My sickness was mentioned as a misconduct by Mrs Howe and then Mrs Parker just after my RTA injuries in the grievance meeting in Mrs Howe’s office … 15 August 2017.

[102]It therefore appears that any less favourable treatment complained of occurred in 2017. Under s123 of the Equality Act 2010, claims for discrimination must be presented within three months of the act complained of, or within such period as the Tribunal considers just and equitable.

[103]The first ACAS Early Conciliation process in which disability discrimination was mentioned was 28 February 2019, meaning that any discrimination arising before 29 November 2018 is on the fact of it out of time. Therefore Allegation 4 is significantly outside of the primary three-month time limit.

[104]I find that the Claimant has no prospects of demonstrating that the claim was brought in such time as a Tribunal would consider just and equitable. This is particularly given that the Claimant had already entered one claim, by which time the alleged discrimination is said to have occurred. There can be no reasonable prospects of the Claimant demonstrating any good reason why she did not mention this allegation of discrimination at least in her first claim form, but instead waited to enter her second claim form.

[105]This is an allegation of victimisation pursuant to s27 of the Equality Act 2010, for which it is not necessary for the Claimant to prove she was disabled.

[106]The first requirement under s27 is that the Claimant must be able to show she did one or more protected acts. S27(2) describes a protected act asa. Bringing proceedings under this Act;

b. Giving evidence or information in connection with proceedings under this Act;

c. Doing any other thing for the purposes of or in connection with this Act;

d. Making an allegation (whether or not express) that A or another person has contravened this Act.

[107]Towards the beginning of the hearing, I asked the Claimant if I had correctly understood what she relied upon as protected acts for the purposes of her victimisation claim, as set out in her Objection document at p21-22. She informed me I had correctly recorded them as being her three grievances as follows: 107.1. Protected Act 1 – 30 November 2015 – first grievance “of victimisation as a result of externally whistleblowing to CQC regarding care home negligence and neglect of a Resident Irene Davis”; 107.2. Protected Act 2 – 5 July 2017 – second grievance “of physical disability discrimination by Mrs Sharon Howe, no reasonable adjustments. No recommendations documented from the nominated receiver Mrs Wanda Spooner having apply the Claimant own safety as Mrs Sharon Howe” [sic]; 107.3. Protected Act 3 – 13 August 2018 – third grievance “was raised of Mrs Sharon Howe negligence and cruelty to the ornamental Kio Carp not having any oxygen in the pond and in large numbers carp were dying and were rotten floating on the top of the pond for days without Mrs Sharon Howe getting a vet to eradicate the deaths of the carp Mrs Sharon How and Mrs Karen Parker are both liable and in breach of the Animal Welfare Act 2006 the environmental officer of HCC should of [sic] been notified as to dispose of the dead carp as this is HCC grounds”.

[108]I have searched the index of Sections A-D, and cannot find that I have a copy of Protected Act 1 and/or 2 (I have snippets of the 5 July grievance, but not the complete document).

[109]The disclosure at Protected Act 1 seems in fact to be an allegation of treatment arising from whistleblowing, rather than an allegation of a breach of the Equality Act 2010. There is nothing in Protected Act 1 that could in fact amount to a protected act under s27.

[110]Regarding Protected Act 2, there is an assertion within that statement of a breach of the Equality Act, namely a failure to make reasonable adjustments and of disability discrimination. Taking the Claimant’s claim at its highest, this is capable of being a protected act.

[111]I have a copy of Protected Act 3, the Claimant’s grievance of 13 August 2018 at p1637-1641. There is nothing in that grievance that falls within the definition of a protected act as set out in s27(2) of the Equality Act 2010. It is fair to say that there are allegations of “harassment”, however there is no mention of that conduct being linked to a protected characteristic, and it appears to me that the Claimant uses the words “bullying” and “harassment” interchangeably, without giving the latter word its legal meaning.

[112]I therefore conclude that the only potentially viable protected act is Protected Act 2 that occurred on 5 July 2017.

[113]The question then is whether there are prospects of the Claimant showing that any detriment arose because of that protected act.

[114]As a preliminary point under this allegation, Mr McHugh argued that EJ McNeil’s direction that only disability discrimination and breach of contract claims proceed (p47), meant that any victimisation claim should not proceed.

[115]I highlighted to Mr McHugh that, sometimes, people refer generically to discrimination, believing it to encompass victimisation. Mr McHugh did not accept this point, given that EJ McNeil would have been fully aware of what his chosen words meant.

[116]I do not accept Mr McHugh’s submission that, purely on the basis of EJ McNeil’s direction, the victimisation claim does not survive. EJ McNeil’s direction was written in the face of a claim form containing many complaints for which the Tribunal does not have jurisdiction. My reading of this direction is to limit the claims moving forward to those for which the Tribunal does (at least in theory) have jurisdiction. Clearly, the Tribunal has jurisdiction to consider victimisation claims. I will therefore consider whether this claim has prospects of success.

[117]Victimisation as a head of claim appears in the second ET1 at p37 and in the third ET1 at p79 (repeated in the fourth claim) but there is no particularisation at all there as to the facts of that claim.

[118]Considering the Claimant’s Further and Better Particulars, at A/1046, the Claimant states: Mrs Howe breached the Respondent’s own policies by using “sickness” as no “trigger points” where [sic] introduced that is in the HR Manual 10.9 page 9, 10, and 11 if Mrs Howe having issues with my “sickness” Mrs Howe and Mrs Parker were using this after returning from a RTA and myself raising to Mrs Parker of Mrs Howe being unreasonable unfair among a lot of procedures Mrs Howe breached “The Employment Contract” this all started after the grievance I was forced to place on the 5 July 2017 and “Mrs Parker” was not allowing me any witnesses on the 15 August 2017 meeting, not even a Union Representative as to also witness Mrs Howe “discriminating mental impairment disability bold statements” Mrs Parker did not “act” or prevent “harassment” or “discrimination” or applying monitoring “acts” to of safeguarding myself from Mrs Howe…[sic]. – my emphasis.

[119]There is arguably a causative link pleaded between the protected act and a detriment here.

[120]However, the sickness absence that appears to be the factual matrix to any such detriment must be the sickness absence taken in 2017, looking at the chronology.

[121]The first claim to mention victimisation is the second claim dated 1 April 2019, with the Claimant having contacted ACAS in relation to this claim on 28 February 2019. This claim is therefore also significantly out of time. For the same reasons as set out in relation to Allegation 4, I find that the Claimant has no reasonable prospects of demonstrating that this allegation was presented in such time frame as was just and equitable within s123(1)(b) of the Equality Act 2010.

[122]This is a failure to make reasonable adjustments claim under sss20/21 of the Equality Act 2010.

[123]It is necessary for a Claimant to be disabled in order to run a reasonable adjustments claim. Given my findings above, that the Claimant has no prospects of demonstrating that she is disabled for the purposes of s6 of the Equality Act 2010, it follows that she can enjoy no reasonable prospects of a reasonable adjustments claim succeeding.

[124]I note the following point, for completeness: that the Respondent in the Schedule states that this is not a claim that is pleaded in any of the Claimant’s claims. I disagree. In the Claimant’s second claim she states – A/45: Home Manager put no health risk assessments in place for me or a meeting before coming back no support HM said we are not insured for you and you have to be 100%.

[125]This is expanded upon in some of the Claimant’s further and better particulars – A/1021: April 2017 Mrs Howe placing myself on Manual Handling physical training first day back from a RTA being hit by a car and being thrown across a roundabout this training was set up without any risk assessments or OH referrals is a breach of the Health and Safety at Work Act 1774.

[126]Another issue arises in other Further and Better Particulars – A/1024 April 2017 tried returning to work as the Respondent or the “registered manager” Mrs Howe did not apply the reasonable adjustments to the contractual policies on “contractual sick pay” to pay the sick pay as a “reasonable adjustment” which is a breach of the “reasonable adjustments”…

[127]There is a further mention at A/1111: The Respondent failed to take reasonable steps in relation to my RTA return to work starting April 2017 and then 20 June 2017…

[128]These claims relate to matters that occurred in 2017. As with Allegations 4 and 5, these claims are significantly out of time. For the same reasons as I have stated in relation to Allegations 4 and 5, the Claimant has no reasonable prospects of proving that these claims were brought in such time that was just and equitable.

[129]This is a claim under the Equality Act 2010, however it is not clear at p79 (repeated at p121)) what the factual allegations (or in fact the specific legal allegations) are surrounding this issue.

[130]Without anything more, and considering what is set out in all the pleadings, this must be a reiteration of Allegations 3, 4, 5 and 6, which are all claims that would fall within the Equality Act 2010 umbrella.

[131]This basic assertion of a breach of the Equality Act 2010 at p79 takes those allegations no further, and I therefore need not consider Allegation 7 separately to my findings on Allegations 3, 4, 5 and 6.

[132]This claim is one of whistleblowing detriment, under s47B of the Employment Rights Act 1996. This allegation appears in the third ET1, at p79, and states: Employment Rights Act 1996 (not allowing whistleblowing) … Detriment to a lot of acts and for numbers of times me whistleblowing.

[133]There is another allegation within the Claimant’s Further and Better Particulars of 28 February 2020 (A/178-179): The Respondent put me in an invidious position after whistleblowing about Mrs Howe and Mrs Parker. … Where an employee has made a “protected disclosure” and has resigned as a result because they made that disclosure they can claim for wrongful constructive dismissal or unfair constructive dismissal. … Health and safety was not conducted by Mrs K Parker or Mrs S Howe as I was suspended for whistleblowing about neglect to ornamental Koi Carp a text sent to Mrs K Parker that the respondent has not provided any correspondence between myself and Mrs K Parker.

[134]At A/1070 (in the Further and Better Particulars of 21 August 2020, the Claimant writes: 3 August 2018 at 21.22pm I sent a text to Mrs Parker (Regional Manager) about “negligent acts to the Ornamental Koi Carp inhumanely dying as they could not breathe”. And that Mrs Howe was “scapegoating with excuses to avoid responsibility to save the Carp” …

[135]The Claimant also mentions prosecution by the RSPCA.

[136]I also note that, in the Claimant’s resignation letter (C/1854), she states: Whistleblowing is what I was doing about the Fish and in first grievance in 2015 but it is in your policies a whistle blower should not be treated unfairly for whistleblowing but that has happened to me for whistleblowing about the HM [home manager] and the Carp. Detriment as for whistleblowing. A Company should safeguard a whistleblower.

[137]In order to bring a detriment claim, the Claimant must demonstrate that she made a protected disclosure, the definition of which is set out at s43B of the Employment Rights Act 1996: (1) In this part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show one or more of the following:a. That a criminal offence has been committed, is being committed or is likely to be committed,

b. That a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

c. That a miscarriage of justice has occurred, is occurring or is likely to occur,

d. That the health or safety of any individual has been, is being or is likely to be endangered,

e. That the environment has been, is being or is likely to be damaged, or

f. That information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.

[138]Having read through the Claimant’s claim forms and Further and Better Particulars, it appears to me that the Claimant’s case regarding a protected disclosure is that she blew the whistle by texting Ms Parker about Ms Howe’s treatment of the carp in the fish pond in August 2018. I understand that she alleges that it was this protected disclosure that led to her suspension and disciplinary process. The words of this text are found within the disciplinary report produced at C/1760: Need an air filter in pond at Belmont view fish are dying they can’t breathe I’ve taken 6 fishes out dead cruelty has been reported to home manager sorry your friend, big mistake I made. I will report it as it’s not right she leaves them in the pond to rot. But she aggressively said to me you grassed me up There [sic] MY FISH MY POND well I said well look after them then she’s done nothing. But you have her back oh my brother died, split up with my partner, drinking, oh my dog died. What next. You are losing good staff your [sic] a regional manager and letting all this go on why? Ok pond needs sorting hose on rspca has said that’s what they need she said it costs money. Really, professional person to help them. Spend the money or let them go sort it out.

[139]It also seems that the Claimant relies on her grievance from 2015 as a protected disclosure. I note the Claimant’s report of that 30 November 2015 grievance in her Objection note: of victimisation as result of externally whistleblowing to CQC regarding care home negligence and neglect of a Resident Irene Davis.

[140]From my reading of the Claimant’s pleadings, it seems that she only raises issues of detriment caused by the text regarding the fish pond, and does not complain of any detriment arising in consequence of the 30 November 2015 grievance. I will therefore focus on the text.

[141]From the Claimant’s quote of the text referenced above, there are little, prospects of this being found to equate to a protected disclosure. It is just arguable that this text could potentially fall within s43B(1)(a) or (b) of the Employment Rights Act 1996. Detriment claim – s47B Employment Rights Act 1996

[142]Turning then to the detriment. I understand from the sections I have quoted above that the Claimant states that she was suspended because of the text. This is also what she told me during the hearing. She also indicates that she resigned in part in response to the way she was treated following making the alleged protected disclosure.

[143]The Claimant also suggested to me that the grievance and disciplinary process stemmed from Ms Parker showing Mrs Howe the text, and that their treatment of her was the reason the Claimant was off work with work related stress. I can see from the fit notes that the Claimant was off work for work related stress from 12 November 2018 (D/2218): it may have been earlier, but a couple of the fit notes are illegible. The grievance and disciplinary combined process was concluded by way of outcome letter dated 29 March 2019. The consolidated appeal outcome was sent to the Claimant on 4 June 2019, sent by post and email – C/1803.

[144]Looking at the disciplinary process that arose from the text sent in August 2018, the Claimant through the course of that process recognised that she should not have commented on Mrs Howe’s personal matters and in fact apologised for the words she used – C/1764 & 1766. It therefore appears on the face of it that the Claimant accepted some fault for the content text.

[145]Although different people are involved in the disciplinary process other than Mrs Parker and Mrs Howe, I bear in mind the case of Royal Mail v Jhuti

[2019] UKSC 55

, in which the Supreme Court held at paragraph 62: …if a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the decision-maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason.

[146]It is therefore at least theoretically possible for the Claimant to argue that the ongoing grievance & disciplinary processes provided the requisite causative link to the protected disclosure.

[147]However, given that the Claimant accepted some inappropriateness in her text, I find that there is little reasonable prospect of the Claimant showing that the disciplinary process was anything other than genuine. I therefore find that there is little reasonable prospect of it being found that the disciplinary process was due to the Claimant having made a protected disclosure, rather than being due to the inappropriate choice of wording within the text.

[148]Regarding the grievance of 13 August 2018 (C/1637), this focuses on Mrs Howe’s alleged bullying of the Claimant. There is a brief passing reference to the text message and although the issue with the fish pond is mentioned, it is one small part of a much greater grievance. I also note that the grievance process was dealt with by people other than Mrs Parker and Mrs Howe. I consider that there are no reasonable prospects of a Tribunal finding that the manner in which the grievance process was conducted was caused by the Claimant’s text to Ms Parker.

[149]Being as generous to the Claimant as possible, the detriment must have come to an end on receipt of the appeal outcome letter on 4 June 2019: the claim for whistleblowing was raised in the third claim, the ACAS Early Conciliation period for which started on 4 September 2019.

[150]Claims for whistleblowing detriment must be brought within three months of the detriment suffered, or, if a claimant can show it was not reasonably practicable to have brought it within that time frame, a reasonable period thereafter – s48(3) of the Employment Rights Act 1996. This claim is (taking the Claimant’s case at its highest) one day out of time.

[151]Taking all of the above into consideration, I conclude that the Claimant has little reasonable prospect of succeeding on her detriment claim regarding the disciplinary process. I find that there are no reasonable prospects of succeeding on her detriment claim regarding the grievance process. Automatic dismissal claim – s103A Employment Rights Act 1996

[152]Turning to the claim connected with the Claimant’s resignation, this is in fact a claim for constructive automatic unfair dismissal under s103A of the Employment Rights Act 1996.

[153]Such a claim requires the Tribunal to be satisfied that the Claimant suffered a detriment under s47B that led (at least in part) to her resignation.

[154]I have read the Claimant’s resignation letter, and have referenced the relevant section above at C/1854.

[155]I have concluded that the detriment claim (relating to the disciplinary process) has little reasonable prospects. The automatic constructive unfair dismissal claim must be based on the assertion that this detriment was at least in part why the Claimant chose to resign. It follows that the dismissal claim also has little reasonable prospects. I accept that the Claimant mentions the alleged detriment within her resignation, however there will be various obstacles for her to overcome in succeeding in this claim, the first being to succeed on her detriment claim. Allegation 9 & 10

[156]I take these two claims together because, as Mr McHugh conceded, if the constructive unfair dismissal claim has some prospects of succeeding, the same must be said of the wrongful dismissal claim.

[157]The wrongful dismissal claim is for the Claimant’s notice pay, as she resigned without notice. The constructive unfair dismissal claim amounts to the Claimant saying that the Respondent acted in such a way as to entitle the Claimant to terminate her contract of employment without notice pursuant to s95(1)(c) of the Employment Rights Act 1998. Should this be proven to be the case, then the Claimant would succeed, not only on her constructive unfair dismissal claim, but also on her wrongful dismissal claim.

[158]These two claims appear in the third ET1 (repeated in the fourth) – p79/80. I accept the Respondent’s point that the constructive dismissal claim is not clear and is more in narrative format. However, within that narrative there are allegations that are capable of amounting to a fundamental breach of contract, if made out on the facts. I have also had the benefit of having seen and read the Claimant’s resignation letter at pp1851-1875.

[159]I can see the following (amongst other matters) asserted within the narrative of the ET1: 159.1. Karen Parker (Regional Manager) allowed Sharon Howe to “breach the Hate Crime legislation could of [sic] been investigated by the police for common assault but I was out of time and was not aware of hate crime RM did not investigate or guide me what to do, what I told the RM [Regional Manager] in her notes on her laptop that the RM has deleted from my personal file”; 159.2. The Respondent failed to comply with its own grievance and disciplinary procedures, and did not listen to the Claimant’s grievances by not reasonably meeting its own time frames.

[160]Both of these issues, if proven, could in theory amount to a fundamental breach of contract. If the Claimant can demonstrate that Ms Parker stood by why Ms Howe committed some form of bullying act against the Claimant, this could (at least theoretically) amount to a breach of the implied term of trust and confidence.

[161]Regarding policies and procedures, in W A Goold (Pearmak) Ltd v McConnell

[1995] IRLR 516

, the EAT held that there was an implied term in the contract of employment “that the employers would reasonably and promptly afford a reasonable opportunity to their employees to obtain redress of any grievance they may have”. Further, the Claimant also raises that her grievances weren’t listened to (p79): the EAT in Waltons and Morse v Dorrington

[1997] IRLR 488

held (following McConnell) that a fundamental breach could arise from an employer being dismissive of an employee’s grievance.

[162]Mr McHugh argued that, even if there was a fundamental breach, the Claimant affirmed her contract as the disciplinary and grievance appeal outcome was five weeks prior to her resignation.

[163]An employee must make up his/her mind “soon” after the conduct that he/she alleges amount to a fundamental breach – Western Excavating (ECC) Ltd v Sharp

[1978] IRLR 27

. There is however no specific time window within which an aggrieved employee must resign; rather it is a question of fact in each case, and a reasonable period will be allowed. It is therefore perfectly possible that a gap of five weeks is not too long as to mean that the Claimant affirmed her contract.

[164]I find that Allegation 10 has more than “little” reasonable prospects; it therefore follows that the same is true of Allegation 9.

[165]I therefore find that Allegations 9 and 10 can continue unfettered. Recap

[166]To be clear, I set out here a summary of my findings: 166.1. Allegations 1, 2, 3, 4, 5, 6, 7, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 have no reasonable prospects of success and are struck out; 166.2. Allegation 8 has little reasonable prospects of success; 166.3. Allegations 9 & 10 continue unfettered. Amount of deposit order

[167]In relation to Allegation 8, which relates to both a detriment claim and an automatic unfair dismissal claim, I attach a deposit order to the Allegation as a whole, rather than attaching an order to the detriment claim and dismissal claim separately. I do this as to two claims are so interwoven, that the dismissal claim can only have a chance of success if the detriment claim succeeds.

[168]I remind myself that, from the Claimant’s evidence on means, she has roughly £150 available at the end of each month, and savings of £2000.

[169]I therefore order that a deposit of £300 will attach to Allegation 8. In light of the Claimant’s means, and the purpose (as set out above) of deposit orders, I am content that this figure represents a sum that is proportionate and reasonable. I am satisfied that this figure will not impede the Claimant’s access to justice, whilst encouraging her to think carefully as to whether she wishes to pursue this particular Allegation.

[170]I note that I will exclude myself from hearing the final hearing in this matter, having given the above opinion on prospects.

[171]Below are recorded (word for word, including typographical errors) the Allegations as listed in the Respondent’s Appendix B, which distilled the Claimant’s claims down into a list of the overarching complaints. These are the Allegations as I refer to them in my Judgment.

[172]I have also included a column to the right, to state whether the Allegations survive and, if so, whether they require a deposit to be paid. Allegation Detail Status

CONCLUSIONS

[1]Breach of contract and unauthorised deductions Struck out claim in respect of non-payment of sick pay.

[2]Disclosure of information to trade unions for Struck out collective bargaining purposes/breached Trade Union and Labour Relations (Consolidation) Act 1992. Failure to disclose information section 183-184 TULRCA 1992. “Unison has no power over negotiating inforcement on QC’s as the policy is only non-binding collective bargaining agreement so it is a detriment to employees policies for new employees sick is a drastic cut and Unison are powerless no point in having a Union just to make QC look good (for show) CQC have from me in 2015 a serious neglect to a resident never lodged that report or deleted documents lots of complaints go into.”

[3]Direct discrimination of a prognosis from the HM Struck out without any specialist expertise or OCH referrals to support to HM direct discrimination. A Direct Disability Discrimination claim on the basis of an alleged perceived mental health disability. The Claimant denied that she suffered from any actual mental health disability within her pleadings.

[4]A Direct Disability Discrimination claim on the basis Struck out of an historic motor bike injury.

[5]A Disability Victimisation claim notwithstanding the Struck out fact that the Claimant has not pleaded or carried out a Protected Act.

[6]Failure to implement reasonable adjustments Struck out regarding the Claimant’s return to work in 2017.

[7]Equality Act 2010. Struck out Assumed to be Disability claims referred to above.

[8]Employment Rights Act 1996 (not allowing Survives with whistleblowing). a deposit order - £300 And Detriment to a lot of acts and for numbers of times me whistleblowing. And Protection of the Public Interest Disclosure Act 1998. Wrongful dismissal (constructive). Survives Unfair dismissal (constructive). Survives Health and Social Care Act 2012. Struck out Human Rights Act 1998. Struck out Defamation Act 2013. Struck out

[14]Duty of care. Struck out Assumed to be a personal injury claim by the Claimant against the Respondent. Care Act 2014. Struck out

[16]The Protection from Harassment Act 1997. Struck out Health and Safety at Work Act 1974. Struck out

[18]Management of Health and Safety at Work Act Struck out 1999.

[19]Disclosure to my personal file data being withheld. Struck out Breach of Data Protection Legislation.

[20]Unison not allowing me as a member to have Struck out representation from outside the Hertfordshire region when on their advertising states members can and two of the representatives would have had a conflict of interest. One works in QC head office the other is a ex Home Manager for Quantum Care. Maggie Lille the Unison representative gave me false information then said she would not represent me I said I did not need her help as I could not trust her nothing personal to Maggie Lillie.

[21]CQC they are not interested, CQC have stated QC Struck out have their own inspectors but cannot answer why.

[22]Hertfordshire County Council (HCC) are no very Struck out responsive asked for a FOI many excuses from them worst one was they have no involvement with QC they are their Local Authorities and on their WC complaints procedure. HSE sent a Health and Safety issue towards. Employees to HCC and they have not even acknowledged that. Iain Macbeath has been to open Anson Court in Welwyn Garden City and at Belmont View care home so that is a contradiction as Iain Macbeath is a director at HCC.

Introduction

[33]I have also had sight of parts of the HR Manual, including the sick pay policy, at p1604/1606, which provides as follows: Statutory Sick Pay (SSP) All employees have a right to SSP as long as they earn more than the lower earnings level (Payroll can confirm the current rate). SSP is not, however, payable for the first three qualifying days of absence. A qualifying day is a day on which you are normally expected to work under your contract of employment. … Occupational Sick Pay (OSP) OSP is sick pay over and above the statutory amount paid by Quantum Care. This is entirely at the discretion of management but will not be unreasonably withheld as long as you have conformed to the notification requirements and have produced any necessary medical certificates, including self- certificates. … … If you take sickness absence after a disciplinary investigation or formal disciplinary process involving you has been started by Quantum Care, then you will not usually receive any occupational sick pay. In exceptional circumstances, the Director of Human Resources and Training or the Director of Operations may at their discretion agree to pay occupational sick pay.

[43]On 25 April 2019, the first and second claims were consolidated – A/52.

[44]On 17 July 2019, the Claimant resigned by letter at pp1851-1875, having not returned to work since being signed as unfit to work on 12 November 2018.

[45]On 26 July 2019, EJ Lewis directed that the Claimant clarify if she has a disability and, if so, what it is – A/72. No answer was ever received to this request.

[48]On 3 March 2020, Regional Employment Judge Foxwell ordered that all four of the Claimant’s claims be consolidated under claim number 3303903/2019 – A/188.” After the hearing before Judge Shastri-Hurst 21. The outcome of the hearing on 11 February was that the great majority of the claimant’s claims were struck out, and further claims were dismissed following the claimant’s failure to comply with deposit orders directed by Judge ShastriHurst. (I was told at this hearing that the claimant has appealed against all or some of Judge Shastri-Hurst’s Orders, but that as her appeal was presented late, it has been listed for a preliminary hearing on whether it may proceed out of time). 22. In light of Judge Shastri-Hurst’s rulings, the only claims which proceeded were a claim for constructive unfair dismissal, and for notice pay. The respondent, which contended that the claimant’s employment ended upon her voluntary resignation, conceded that if the claimant was found to have been dismissed, her claim for notice pay must succeed as a matter of logic. The notice pay claim therefore was entirely dependent on the claim for unfair dismissal. 23. Judge Shastri-Hurst directed a preliminary hearing to take place before herself on 9 June 2021 to continue with case management in light of the decisions given on and after 11 February. In light of comments made by the claimant in correspondence, she in the event recused herself from doing so, and the case management hearing took place before Employment Judge Alliott on 9 June 2021. His case management order was sent to the parties on 1 July (T170- 176). Case management by Judge Alliott 24. Judge Alliott listed this case for seven days to start on 1 September 2022, an estimate which he said was based on the claimant’s intention to give evidence and call 15 witnesses, and the intention of the respondent to call 5. He commented that that appeared an excessive allocation of time. He reminded the parties that the only remaining claims were constructive unfair dismissal and wrongful dismissal. 25. At paragraph 3 of his order he wrote:- “I explained to the claimant in some detail the nature of the claims that she has remaining. I explained to the claimant that the law will imply into her contract of employment a term of mutual trust and confidence. The claimant will have to establish that the respondent was in serious or fundamental breach of that term either by a single act or a series of connected acts. I explained that the claimant will have to establish that she resigned, at least in part, because of any breach established. I stressed to the claimant that any witnesses she intended to call and documents she intended to disclose should be limited to evidence relevant to the issues between the parties.” 26. Judge Alliott directed that two documents provided by the claimant in response to Judge Shastri-Hurst’s orders would count as the particulars of her constructive dismissal claim. They were in the bundle at T125 and T126, and separately or together were very close to incomprehensible. Broad brush, it is possible to understand that the claimant was aggrieved by the procedural conduct of grievance and disciplinary procedures. The following extract, which repeats the original verbatim, is set out to illustrate the point (T125): “No outcomes to 30th Nov 2015 and 5th July 2017 states (r) not complying with internal complaints or grievances processes as (KP) deleted all notes 18th July 2017 grievance meeting, it was evidence of the (c) suffering through (SH) unjust repeated behaviour the (c) had to think of her job security and safety as a riled (SH) was dangerous to the (c) after a RTA or in general as of unprovoked behaviour from (SH) then turned against the (c) through (SH) and (KP) failures the 3rd Aug 2018 text was about (SH) scapegoating her responsibilities as a (HM) of the cruelty to the Carp, dying inhumanely. (SH) (KP) use inept behaviour for their personal lives issues as an excuse for their failures. (c) Bundles provide this in evidence.” 27. On 16 June 2021 the claimant provided a schedule of loss (T135). It was written in disregard of the judgment of Judge Shastri-Hurst and its consequences, and set out significant sums for claims which(a) had been struck out, and

(b) which could never be before the tribunal as the tribunal does not have power to hear them (eg “breach of health and safety laws in the workplace” and “data protection breaches”). The total was £271,000. She had written on her ET1s that her normal net monthly pay was £996. 28. Correspondence in the 14 months between the hearing before Judge Alliott and the start of the hearing before me was extensive and disproportionate, and it would not assist to attempt to summarise it here. The respondent made a helpful attempt to summarise it in pages S2 to S67. I note only the following:-  On 17 August 2021 at Judge Alliott’s direction, the tribunal reminded the parties of the need to adhere to the case management timetable (S3);  On 11 November 2021 at Judge Alliott’s direction, the tribunal extended time for exchange of witness statements to 31 January 2022 and wrote as follows (S10): “[The Judge] is concerned at the volume of documents that it appears the claimant is insisting go into the hearing bundle. Documents only relevant to her appeal to the Employment Appeal Tribunal and that concern the claims that have been struck out MUST NOT be in the bundle. If the claimant persists in asserting that all the documents are relevant then the respondent has permission to produce its own bundle of core, relevant documents for use at the Full Merit hearing. The larger bundle(s) can be available for relevance if required.”  On 5 January 2022 Mr Donaldson sent the claimant the index to the 956 page bundle, a link to the bundle, and the password to access it (T11);  Correspondence in about February 2022 concerned the claimant’s wish to test the evidence of about 20 former colleagues, either through the disclosure process or by oral evidence.  On 8 March 2022 at Judge Alliott’s direction, time for exchange of witness statements was extended to 31 March. In reply to a point raised by the claimant, the tribunal wrote (S24): “It is not possible to question witness’ in advance of the hearing. Questioning of witnesses takes place at the final hearing. Once again Employment Judge Alliott remind the parties that only relevant evidence should be placed before the tribunal. The claimant should be aware that if she calls witness evidence or refers to documentation that the tribunal considers to be irrelevant then the tribunal may exclude and disregard it;”  The care sector in which the respondent operates was subject to health related restrictions. The claimant also reported that a witness suffered from covid. The parties agreed to exchange witness statements on 3 June 2022, the agreement being recorded on 27 April (S28/29);  In response to further correspondence, at Judge Alliott’s direction on 7 July, the tribunal extended time to exchange statements to 4pm on15 July. The letter wrote (bold and caps in original, S37): “If a party fails to comply with this order an Employment Judge MAY WELL STRIKE OUT THE WHOLE CLAIM OR RESPONSE.”  The same letter reminded the claimant that it was her responsibility to call her witnesses and arrange their attendance. Judge Alliott repeated that the respondent was to send the claimant a copy of the bundle, commenting: “It is disproportionate for the respondent to provide a hard copy of all the documents relied on by the claimant as most appear to be irrelevant. It is for the claimant to bring 2 copies of any documents relied on not in the respondent’s core bundle to the hearing.”  By email sent on 15 July at 4pm exactly (S40) the claimant sent the respondent a document headed “Witness Statement”, to which I return in discussion below.  At about the same time hard copies of the two ring binders which make up the bundle were sent to the claimant. The claimant has told me that the parcel contained one binder and not two, and was sent to the wrong address. Mr Donaldson said that he had made up the parcel himself and that it contained both binders. I can make no finding about the delivery. I note that the claimant had a soft copy of the bundle since 5 January 2022.  Further correspondence of increasing acrimony ensued. The respondent did not regard the 15 July document as the claimant’s witness statement. It thought therefore that it was under no obligation to serve its witness statements. While I agree with the first point, it would have been more in accordance with the overriding objective for the respondent to serve its witness statements unilaterally on or after 15 July, recognising the imbalance of knowledge and experience between the parties, and irrespective of the ill-will generated in the correspondence.  On 10 August 2022 at Judge Alliott’s direction, the tribunal directed immediate provision of the respondent’s witness statements and stated (S59): “The claimant is warned that if she has not served a witness statement for herself and any of her witnesses an Employment Judge may well conclude that the case is not in a fit state to be tried and one option may be to strike out the Claimant’s claim for failure to comply with Case management orders.”  On 23 August 2022 the tribunal wrote at the direction of Employment Judge Quill, refusing the claimant’s application for a postponement (made on grounds of there being a pending appeal), advising the claimant of the procedure for applying for witness orders, and reminding the parties that Judge Alliott’s directions of 10 August remain fully in force (S65).  The claimant’s reply (S65) sent at 23:46 on 24 August is referred to below as it was one part of the basis for a strike out application made by Mr McHugh.  The matter came before me on 1 September when, as it happened, the claimant was unable to proceed due to a very recent positive covid test. Submissions 29. Mr McHugh submitted that the tribunal should strike out the claim because the claimant had failed to comply with Orders of the tribunal, and had conducted the claim unreasonably. I deal with each aspect separately. The witness statements 30. Judge Alliott’s order of 9 June 2021 had written (T174, bold in original, underlining added): “ The claimant and the respondent shall prepare full written statements containing all of the evidence they and their witnesses intend to give at the final hearing and must provide copies of their written statements to each other on or before 4pm, 20 October 2021. No additional witness evidence will be allowed at the final hearing without the Tribunal’s permission. The written statements must: have numbered paragraphs; be cross-referenced to the bundle(s); contain only evidence relevant to issues in the case. The claimant’s witness statement must include a statement of the amount of compensation or damages she is claiming, together with an explanation of how it has been calculated.” 31. The claimant’s witness statement of 15 July was set out entirely in question and answer format. The first four lines read as follows:- “Is it true you worked for Quantum Care (QC)? Yes. How many years service did you provide? I started 12th August 2013 so that is just short of six years.” 32. That is a distinctly odd format, unique in my professional experience, but nevertheless the basis of a workable document if there were no other problems. 33. No paragraphs were numbered, contrary to Judge Alliott’s direction. The statement was prepared 54 weeks after Judge Alliott’s order; tiresome though it would have been, it would have been the work of a few minutes for everyone at the start of a hearing to add numbering to the document before them. 34. I now turn to more serious shortcomings in the statement. The statement did not contain a single cross reference to the bundle. Given the time and energy generated by disputes about bundles, and given that the claimant had had access to the respondent’s bundle since 5 January, that was a more difficult and serious non-compliance. That was a serious non-compliance, but it was evidence of preparation without analysis or focus, and an indication that time would be wasted during the claimant’s evidence. 35. Judge Alliott’s order had referred to “full” statements, containing “all of the evidence” and had stated that there would be, “No additional evidence”. The final three lines of the claimant’s statement were as follows (S42):- “Is it true that a meeting took place… regarding an anonymous letter? Yes. More to be asked in the final hearing.” 36. Judge Alliott, had at least three times in a single sentence, directed that the totality of the evidence was to be in the witness statement. His directions were not a mere formality: they were a clear indication of an essential element in trial preparation, namely that each side places its cards fully on the table well in advance, and that as result each party knows in advance the full case which it will have to answer. 37. The substance of the statement appeared to be grievance and complaint about management practice. It referred to anecdote without any form of detail, reference, or particularisation. It made general allegations (eg respectively “A resident swung her stick at me” and “I was monitored excessively and blamed for any concerns.” These allegations were too vague, and too imprecise, to be capable of fair trial without a great deal more information. 38. Despite the lapse of some 15 months since Judge Shastri-Hurst’s order, the statement referred to matters which had been struck out (“I was victimised for whistleblowing”). This was a serious indication of either poor preparation, or poor self discipline on the part of the claimant. 39. Nevertheless, even taken cumulatively, the above were not the most serious problems with the claimant’s statement. I now turn to the major significant, substantial difficulties with the statement. It was wholly silent on the great majority of the elements of a claim of constructive dismissal which are for the claimant to prove. 40. The statement did not identify any “series of fundamental breaches” as Judge Alliott had advised. It did not state how or when or why the claimant reached the decision to “resign” her employment. It did not explain the issue of delay, ie the passage of time between the claimant’s last attendance in the workplace (about 4 August 2018) and the date of her resignation on 17 July 2019. To the extent that the respondent was to say that all management actions were for good and proper cause, the claimant did not address those points. Despite the excessive schedule of loss, the claimant gave no evidence on remedy, and was silent on when and whether she next applied for employment, and/or her benefits history after resignation. 41. Taking all the above point togethers, I find that the claimant’s email of 4pm on 15 July was not a witness statement provided in compliance with the tribunal’s case management orders, and was not capable of being the basis of a fair trial. Other statement 42. I add for sake of completeness that the witness statement bundle contained a document which the claimant had provided to the respondent, which was said to be a witness statement by Mr Harknett. In it Mr Harknett reported what he claimed he had been told by a relative employed by the respondent about the management of the covid pandemic. As the claimant’s employment ended several months before the first diagnosis of covid in the United Kingdom, it is impossible to see how this could have assisted the tribunal. 43. On 1 September 2022 the claimant told me that she had had difficulty contacting former colleagues as potential witnesses, and I told her what the standard procedure was: to write to the former colleagues care of the respondent’s solicitor, with a short explanation of why she wanted to contact them, and asking them to contact her, giving contact details. It would then be a matter for the former colleagues, each acting entirely voluntarily, as to how they responded. I did not know, when I said that, that Judge Alliott had advised the same procedure when the claimant brought up the same question on 9 June 2021. Although it is not mentioned in Judge Alliott’s order, I accept the observations of Mr Donaldson and Mr McHugh that that was done, and I accept that the claimant at no point followed that procedure. Bundle of documents 44. Preparation of the bundle had, as appears from the above, generated much more heat than light. I accept that in general litigants in person struggle with the concept of relevant disclosure, working from a professionally prepared bundle (especially through distrust of the opposing representative), and the burdens created by the indiscriminate approach of subject access requests. In this case a professionally prepared bundle was available eight months before the start of trial. Judge Alliott’s proposal, which was that any additional documents should be brought to the tribunal in two sets by the claimant was pragmatic, and not unusual. That approach very often leads to the litigant in person preparing a modest bundle of additional documents and handing them up to the tribunal. My personal approach, when that happens, is usually to explain that the tribunal will work from the professionally prepared bundle, and will refer to the claimant’s separate bundle as and when necessary: in other words, cross the bridge of the claimant’s documents when come to. For that to happen, identical sets of the litigant’s additional documents, bundled and numbered, must be available to both sides, the tribunal, and, ideally, for the witness table. (I assume that Judge Alliott had in mind the latter two when he gave his direction). 45. It was common ground in this case that the claimant had not provided a set of her additional documents to the respondent before 1 September, ie the first listed day. She was then unable to attend that day due to covid. When I asked her how many sets of the documents she had she was uncertain whether she had one set or two; but of course if the respondent had not been provided in advance with the documents she would have needed at least four sets: for herself, the respondent, potentially the witness table, and for the judge. 46. When I asked the claimant how many pages her additional documents might be, she answered that there were about 2,000 pages. I did not at that point go on to enquire whether they had been indexed or paginated. 47. I find that the claimant has failed to comply with orders of the tribunal about disclosure and provision of documents; and that the documents available to the claimant on 1 September 2022 were not capable of forming the basis of a fair trial. Other points 48. Mr McHugh submitted that the claimant’s unreasonable conduct of the proceedings manifested in other respects. I will deal with these relatively briefly.

[49]One was that the claimant had failed to return the pre-hearing checklist. The claimant did not challenge this. I agree that a failure to complete and return the checklist is capable of constituting unreasonable conduct of proceedings. However, to deprive a party of the right of hearing on that ground would be to take procedure as the master of justice. I declined to do so.

[50]Secondly, I had on 1 September directed the claimant to submit evidence of positive covid testing on her behalf and that of Mr Hoad. She had provided a blurred photograph (not a screen shot) of a positive rapid flow test. It was not dated, and there was no evidence that it belonged to the claimant. As it was a photograph, its meta data could not be checked. There was no evidence to support Mr McHugh’s submission that that was done as a deliberate ploy to mislead the tribunal. It did not seem to me that the claimant has been proved to have conducted the case unreasonably in this respect, and given the ambiguities of test flow information, it would not have been at all right to strike out the claim for failure to do so.

[51]Thirdly, Mr McHugh submitted that the claimant’s language about Judge Shastri-Hurst and Mr Donaldson was abusive and outrageous. He referred to the claimant’s written submissions about Judge Shastri-Hurst’s judgment, and in particular to the claimant’s email of 24 August, which (S65) started as follows, underlining added: “Watford tribunal only display hostility towards the claimant thats noted now a another Judge from Watford that is governed by HCC is permitted so ET Judge Quill is to place his qualifications and who he or she is to be fair to a LIP. It seems that Mr Donaldson has secured a sure deal by a new Judge thats why he has gone quiet (bank details need to be checked) as of the biast treatment to the claimant and a strict compliance and the fact Quill knows about something he knows nothing about….”

[52]I agree with Mr McHugh that the underlined words imply that Mr Donaldson bribed, at least tried to bribe, Judge Quill. At this hearing I asked the claimant if she wished to take the opportunity to say anything about that email. Although I did not say so in terms, I am confident that she understood that I was offering her the opportunity to withdraw and apologise for it. She said that she had been stressed, but that was all that she had to say.

[53]I agree that the claimant has expressed herself rudely about Judges ShastriHurst and Quill and Mr Donaldson. Accepting that the email of 24 August alleges that Mr Donaldson paid a bribe to Judge Quill, the allegation is absurd, not least because it is unsupported by evidence, and that position is, at least, one which the claimant has no capacity to change. I agree that the use of personalised abusive language towards an opponent or a judge constitutes unreasonable conduct of proceedings.

[54]I declined to strike out on this ground first because the work of a judge, and of a solicitor, requires both broad shoulders and a thick skin; and secondly because work on this case indicates that the claimant has a significant difficulty in expressing herself properly in writing. If the matter had proceeded, I would have made very clear to her that the slightest recurrence of this degree of personalised rudeness could lead to a strike out. The claimant’s replies

[55]The claimant’s submissions in reply were troubling. She said almost nothing about the grounds of application until, after about 50 minutes of submissions, I asked her to. She instead reiterated a number of her workplace grievances, and her complaints about how she had been managed. Some of these issues went back many years; many of them pre-dated her resignation by a matter of years; and many appeared to depend on an interpretation of an event or a document which I could not decide at this hearing, but which could give rise, if relevant, to a fierce evidential battle at the full hearing.

[56]She raised and had raised points to indicate how difficult she had found case preparation, and disadvantaged in comparison with the respondent’s representatives. I accept that factually that was the case. I do not accept that she has shown evidence of impropriety on the part of Mr Donaldson, such as to be a material consideration in the exercise of my discretion.

[57]I accept that the claimant had full access to the respondent’s bundle by 5 January 2022. I can make no finding on what happened to a hard copy bundle which allegedly went missing in transit. I accept that at the June 2021 hearing Judge Alliott told the claimant (but did not record in his order) about the conventional procedure for accessing former colleagues who might be potential witnesses. I accept the respondent’s submission that the claimant never used that procedure. I repeat that even if the claimant had used it, there is no telling now what responses she might have received.

[58]Finally, the claimant referred to errors as she identified them in the index to the 956 page bundle. I have dealt with this on 1 September but I repeat the point. The claimant was asked to identify pure factual or typing mistakes in the index. She identified about half a dozen mistaken numbers or mistaken descriptions. These were routine slips, presumably in Mr Donaldson’s office, and nothing turns on any of them.

[59]I had not asked the claimant at that stage to say what she challenged in the contents of any document, although that was part of her reply and I disregarded it. If the claimant wished to demonstrate that the bundle was in some way created so as to mislead or deceive or disadvantage the claimant or the tribunal, I reject that submission. I also add that the care with which the claimant, or perhaps a supporter or friend, had gone through the bundle and index, seemed to me a powerful indication that the claimant, or a person on her behalf, had taken some considerable time with a form of preparation for this case, and was capable of doing so in other respects.

Discussion

[60]As I have said above, the task of the tribunal in this instance, as in many, is a balancing exercise. The tribunal prides itself on affording access to workplace justice without need of lawyers. It must balance that open door approach with the right of respondents to be protected from claims which are either unmeritorious or unreasonably conducted, and it must have regard to its own finite resources. Judicial resource devoted to this case is not available to members of the public who may have prepared their cases immaculately, in strict compliance with all orders and directions.

[61]I have found that this case could not have started its trial on 1 September 2022. I have found that the claimant’s witness statement of 15 July 2022 could not be the basis of fair trial, and was not served in compliance with repeated orders and directions of the tribunal. I have found that the claimant’s reliance on 2,000 pages of undisclosed documents, which would not have been available to the respondent and the tribunal as required, was unreasonable. If the claimant had attended with the documents on 1 September 2022, the case would not have been on that date capable of fair trial. I must therefore go on to my conclusions.

[62]I have considered whether the better course would be to adjourn and relist, (possibly in a year’s time, given the level of delay at Watford) and to make a range of stringent case management orders with rigid time limits. I have decided against this because the correspondence from the tribunal, through Judge Alliott, shows that time and again the claimant has been told what is required of her, and warned of the consequences of non-compliance. I have declined to adjourn on that basis because I have no confidence, having heard from the claimant on 1 and 7 September, and read much of what she has written, that she would conduct her case any differently in future from how she has done in the past. I was strengthened in that view by a striking feature of her remarks on both dates, namely the absence of any expression of regret or apology, or acceptance that she had failed to prepare her case as directed.

[63]Is it proportionate to deprive the claimant of the opportunity to be heard? That seems the single most difficult question which I have to decide. In approaching it, I pay no regard whatsoever to any view which I may have formed of the merits. I say so because an impressionistic view of the merits, drawn from the claimant’s poor advocacy and poor writing skills, is not a proper consideration at the present stage, and could well mislead any tribunal faced with a dispute between a represented and an unrepresented party. In all of the circumstances of this case, the sanction of strike out appears to me appropriate and proportionate. Outcome

[64]Although the claimant participated volubly in this hearing, I am left unsure how much of it she really took in. For that reason, and for the sake of clarity, I follow Judge Shastri-Hurst’s thoughtful example by setting out the outcome of this hearing in a format which I hope the claimant will find helpful. In relation to each point raised by Mr McHugh, I ask and answer four questions separately. My decision to strike out the claim is however based on the cumulative replies, when read together. The questions are: Q1: What do I find as fact has happened? Q2: On that finding, do I find that the claimant has complied or not complied with an Order of the tribunal? Q3: On that finding, do I find that the claimant has conducted the case unreasonably? Q4: On those findings alone, do I find that it is in the interests of justice to strike out the claim?

[65]On the claimant’s witness statement, my answers are: Q1: I find that the document of 15 July 2022 was not a witness statement as directed by the tribunal. Q2: The claimant has not complied. Q3: Yes. Q4: Yes.

[66]On the claimant’s documents, my answers are: Q1: I find that the claimant has failed to give disclosure and prepare documents as directed by the tribunal. Q2: The claimant has not complied. Q3: Yes. Q4: Yes.

[67]On the claimant’s failure to complete and return the pre hearing checklist: Q1: I find that the claimant failed to complete and return the checklist. Q2: The claimant has not complied. Q3: Yes. Q4: No.

[68]On the claimant’s evidence of covid testing: Q1: I find that the claimant submitted a photograph. Q2: The claimant has not complied. Q3: No. Q4: No.

[69]On the claimant’s use of language: Q1: I find that the claimant has expressed herself rudely about Judge Shastri-Hurst, Judge Quill, and Mr Donaldson. Q2: Not applicable. Q3: Yes. Q4: No.