Miss J WilsonClaimantMinistry of JusticeRespondent
Before
Employment Judge WarrenIn person for claimantMs L Robinson (instructed by Counsel) for respondentDate 21 October 2021
JUDGMENT
[1]The claimant’s case that she was discriminated against by reason of disability is struck out on the grounds that it has no reasonable prospects of success.[2]The respondent’s application for a deposit order in respect of the claimant’s claim of unfair dismissal is refused.[3]The claimant’s claims in respect of maternity leave or under the Part-Time Worker Regulations are dismissed upon withdrawal.
REASONS
[1]The claim here was issued on 20 May 2015, in short it was rejected for the non-payment of fees. Following the decision in the case of Unison, Miss Wilson was invited to ask for her claim to be reinstated by letter dated 24 November 2017. She applied for the case to be reinstated by a letter from her dated 22 February 2018. The claim was reinstated and it was served upon the respondents on 10 April 2018. A response was filed after an extension of time on 5 June 2018, needless to say the claims are resisted.[2]The matter came before Employment Judge Manley sitting in the Watford Employment Tribunal on 13 July 2018. She listed the matter for hearing today in Bury St Edmunds, I presume because of the shorter time frame that would be involved, so that an employment judge may consider whether or not the disability claim should be struck out on the grounds that it has no reasonable prospects of success and whether, in the alternative, there should be a deposit order in that respect, and a deposit order in respect for the claim for unfair dismissal.[3]Case management orders were made by Employment Judge Manley, including disclosure of documents by 10 August, documents from the claimant by 7 September and the claimant has leave to prepare the witness statement for today although she has chosen not to do so. There has been correspondence regarding what the claimant says is a lack of disclosure on the part of the respondents, the respondent says that it has disclosed all of documents relating to the claimant that it is able to locate, I stress documents relating to the claimant, not relating to the issues because at this stage the respondent does not know what the issues in the case are. Evidence[4]I was provided with two documents by Ms Wilson today, they are documents which were prepared for her, by the CAB, as the basis of a referral to the Free Representation Unit and are submitted as an outline of what she believes her case to be. It is nothing more formal than that, but it tended to assist me in understanding her case. Miss Wilson also prepared a paginated bundle which runs to page number 35.[5]Although Ms Robinson had not seen any of these documents before the hearing, she very sensibly had no objection to them being referred to. Ms Robinson herself had prepared a skeleton argument which had been produced to me and to Miss Wilson before the hearing started.[6]I also note on the tribunal file an email from Miss Wilson dated 13 July 2018, setting out further and better particulars of her claim. That email was also sent to the respondent.[7]Lastly, in terms of formalities, I should recall that I explained to the parties, I, myself am a claimant against the respondents in two sets of proceedings relating to judicial pensions and to rates of pay to part-time fee-paying judges in relation to my role as a fee-paid Employment Judge before I became salaried. Neither party had any objection to me dealing with the matter.[8]I consider first of all though, the respondent’s application that I should strike out the disability claim or disability discrimination claim on the grounds that it has no reasonable prospects of success. I, first of all, reveal the contents of the claim form. At part 8.1 Miss Wilson has ticked the boxes to say that she was unfairly dismissed and that she was discriminated against on the grounds of disability. She has also ticked the box, ‘I am making another type of claim’ which the employment tribunal can deal with and there she has added, “part-time working / maternity leave”.[9]Pausing there for a moment, Employment Judge Manley recorded on 13 July, that Miss Wilson had withdrawn her part-time working maternity claim. I do not see on the file any record of the claim being dismissed on withdrawal, so I will provide the judgement that those claims are dismissed on withdrawal.[10]At section 8.2 in the narrative, Miss Wilson has written that her union representative was on leave and she has been advised to submit the form because of time limits and to say that further and better particulars will follow. In fact, at the section for ‘Additional Information’, on page 12 of the ET1, Miss Wilson did provide some form of narrative about her claim.[11]Lastly, just to note that, she had also ticked a box at part 12 of the ET1 to say that she did not have a disability.[12]I understand that at the preliminary hearing before Employment Judge Manley, she did explain the need to apply to amend her claim with one wished to rely upon matters not set out in the original claim form. There has been no application to amend. If there had been, relevant would have been to such an application, that the claim for disability discrimination now, in October 2018, is hugely out of time. Some of the allegations that Miss Wilson would have wanted to rely upon date back to 2012.[13]Miss Wilson was represented by her union at the relevant time. She was aware of the three month time limit. There was a delay in her responding to the invitation to reinstate her claim. She could, when she reinstated her claim have given more detail of what her proposed disability discrimination claim was. Employment Judge Manley had explained the need for amendment and no application has been made.[14]Further and better particulars have in fact been provided in the email of 18 July, but there are no particulars of any potential disability discrimination claim contained therein, other than mentioned an Occupational Health report of 5 June 2015, which makes reference to depression and anxiety and the view of the Occupational Health Adviser that the circumstances probably qualify Miss Wilson as a disabled person under the Equality Act 2010. There was no application to amend today.[15]Case law provides that on an application for strike out, one must take the claimant’s pleaded case at its highest and unfortunately, there is no pleaded case other than a bare assertion of disability discrimination. I therefore strike out the disability discrimination claim as it has no reasonable prospects of success as pleaded.[16]That then brings me to the question, whether or not I should order a deposit in respect of the unfair dismissal claim. It is necessary to understand something of the background of the case.[17]Miss Wilson was employed as an administrator at the Royal Courts of Justice. She has 29 years’ service. The background is that on, or about, 30 January 2015, there was a murder, a stabbing in her street. That involved a group of youths of which her son was one. The police could not find her son, they went to her house, it was suggested that there had been a party at her house and Miss Wilson was arrested on suspicion of murder.[18]To be clear, she was never charged. She was police bailed to 24 March, and informed on 23 March that there would be no charge. Miss Wilson says that the police assured her that there was no need for her to tell her employer. In fact, the respondent says, its conduct policy at section 13.11E provides that, “employees of the Ministry of Justice must inform their manager if they are arrested.”[19]Miss Wilson was away from work ill with stress and anxiety, perhaps not surprisingly, from 23 January through to 15 September 2015. Her absence was being managed, she was assisted by her union. The union knew of her arrest. She says the union advised her that she would need to disclose the arrest. It was agreed between them that disclosure would be made to somebody senior, not her manager.[20]On 28 August 2015, Miss Wilson wrote to a director at the Ministry of Justice, disclosing her arrest.[21]On 16 September 2015, she was due to return to work after her absence through illness and she was immediately suspended. The failure to disclose her arrest was then investigated. At some point, (it is not entirely clear when), she does in fact return to work.[22]There was a disciplinary hearing on 17 December 2015. During the disciplinary hearing, she further disclosed that she had been fined by magistrates for failing to attend an appointment with the Youth Offending Team under the terms of a Magistrate’s Parenting Order which had been made arising out of her 17 year old daughter’s truancy. In fact, says Miss Wilson, this was all over a misunderstanding and that was later set aside. Miss Wilson said that she had disclosed this to her manager whom had been supportive, giving her time off, in fact, to lodge an appeal. The respondent says the disciplinary officer spoke to that manager during adjournment and the manager had said that she did not know about these things. Miss Wilson says that cannot be true.[23]On 22 December, the disciplinary officer wrote to Miss Wilson to say that she was dismissed for gross misconduct. Miss Wilson appealed. The appeal hearing was on 26 February 2016, Miss Wilson’s union representative attended, Miss Wilson did not. The appeal officer decided, says the respondent, the appeal, on the basis of the evidence before her, the decision to dismiss was upheld.[24]On the merits, the respondent says quite simply, Miss Wilson admitted non-disclosure of her arrest on suspicion of murder. The policy requires, plainly, that it should be disclosed. She was being advised by her union and so ignorance would be no excuse. Given where she works, the importance of these matters is plain to see and it is therefore clear that she should have disclosed her arrest and that this is a very serious matter and that the decision to dismiss would be well within the realms of reasonable responses.[25]Miss Wilson says that dismissal was unfair for the following reasons, and I am setting out a precis, or summary of the many matters that she told me in a one and a half hour discussion with her as to the basis of her case.[26]This is what she says:[27]She did disclose her arrest, it is just that she did so late. Previously she had disclosed late an earlier conviction under the Education Act 1992, that was in 2013 relating to her daughter’s truanting. No action was taken. Murder is of course, I observe, a far more serious matter.[28]The disciplinary officer had said, during the hearing that she was inclined to issue a final written warning. The parenting order matter seems to have tipped the balance and Miss Wilson says the disciplinary officer simply did not understand what that was all about. She says that the disciplinary officer failed to take into account mitigating circumstances which would have included the distressing state that she was in at the time of, and immediately after, her arrest. Which included at the time her having no home to go back to. The fact that she was off ill during a long period with stress and anxiety, and the fact that she had been bullied by her manager at that time whom was a gossip and she did not want to tell her about the arrest which is why she and her union decided to make the disclosure to somebody senior. To avoid confusion, I should make the point that the manager that we are talking about here is a different person from that latterly whom the claimant says was supportive with regards the bad parenting order matter.[29]Miss Wilson says the typed notes of the various meetings in the disciplinary process were not accurate. She says that the respondent brought her back to work from her suspension which suggests they had not regarded the non-disclosure as gross misconduct. She says it is unclear, from the dismissal letter, in what way the respondent had thought that she had not been honest about her circumstances. She said she had been more than honest and she says she had not been evasive as was suggested. Miss Wilson says that the respondents did not properly investigate the Magistrate Court’s fine and it did not put to her, or give her an opportunity to respond to, the manager’s alleged evidence in that regard. She says the disciplinary officer would not discuss the investigation report with her during the disciplinary hearing. She says that the respondents and the disciplinary officer was biased against her and wanted her dismissed, for two reasons I will put forward. The first is because of her absence record; and the second is because she had refused to participate in a conspiracy to undermine her manager when she returned to work.[30]She says that the appeal was listed at a time that she had to drop off her youngest child at school, obviously given this history something that is important, and the respondent had refused to move the start time to a later time of the day. She says it is not that she did not attend the appeal hearing, she did attend, but she was late.[31]She says that in the early stages of the disciplinary hearing, in answering her question from her union representative, the disciplinary officer had said that she regarded the arrest reporting matter as serious misconduct and that the HR advisor had intervened and said that it was gross misconduct. Suggesting perhaps that the decision maker was the HR advisor, and giving some indication of the view, the disciplinary officer took of the matter.[32]Lastly, she says that the respondent’s disciplinary officer had not taken into account her reassurance that there would be no more issues such as this as her daughter was now over 17 and she was no longer responsible for her.
Conclusions
[33]I cannot say that this is a case of little reasonable prospects of success. It is a case which needs to be heard.[34]I therefore decline to make a deposit order.[42]A number of propositions emerge from the authorities, in particular Royal Bank of Scotland v Abraham UKEAT/0305/09; Marcan Shipping (London) Limited v Kefalas [2007] EWCA Civ 463; Johnson v Oldham Metropolitan Borough Council UKEAT/0095/13; and Wentworth-Wood and Others v Maritime Transport Limited UKEAT/0316/15.[43]I can summarise these points as follows. Firstly, there are potentially three distinct decision points for a Tribunal under Rule 38. Firstly, there is the making of an Unless Order. Secondly, there is the determination of whether an Unless Order has been complied with, and hence whether the relevant claim or response or part thereof has been automatically dismissed by operation of the Unless Order. Thirdly, the determination of an application, if there be one, to set aside the Order on the basis that it is in the interests of justice to do so. These are distinct decision points to be approached on distinct bases, in respect of which, if any such decision is to be challenged, a separate appeal is required and time would run from the date of the relevant decision.[44]Where a Tribunal is determining whether there has been compliance with an Unless Order and hence whether to give written notice as to whether the relevant pleading has been dismissed by the Order taking effect, the Tribunal is not concerned at that point with revisiting the terms of the Order: whether it should have been made, or whether it should have been made in those terms. Nor is it concerned at that point with the question of whether, if there has been noncompliance with the Order, there should be some relief from sanctions.[45]The starting point for the Tribunal engaged in that task is to consider the terms of the Order itself and whether what has happened complies with the Order or not. This may call for careful construction of the terms of the Order, both as to what the Order required and as to the scope of the Order in terms of the consequences of non-compliance, particularly in cases where there are multiple claims or multiple parties. If there is an ambiguity the approach should be 6 ph judgment + cm Nov 2014 wip version UKEAT/0264/18/JOJ -16- A B C D E F G H facilitative rather than punitive, and any ambiguity should be resolved in favour of the party who was required to comply. However, what the Tribunal cannot do is redraft the Order or construe it to have a meaning that it will not bear, though its words should of course be construed in context.[46]Next, the test to be applied is as to whether there has been material noncompliance, that being a qualitative rather than a quantitative test. In a case where the Order required some further Particulars to be given, the benchmark is whether the Particulars have sufficiently enabled the other party or parties to know the case that they must meet. However, the Tribunal is not concerned with the legal or factual merits of the case advanced, but merely with whether sufficient Particulars have been given to meet that test.[47]Finally, the Rules do not require any particular formalities to be observed in relation to the process for determining whether there has been non-compliance with an Unless Order, leading, if non-compliance be found, to a written notice confirming that the relevant pleading has been dismissed in accordance with it. This is something that can potentially be done by a Judge on paper without a hearing, although a Judge may decide to invite written submissions and/or to convene a hearing, before making that determination. The obligation on the Tribunal, whichever route it goes, is to comply with the overriding objective.[48]To those points, which emerge from the foregoing authorities, I add the following. Firstly, the Rule does not actually impose an obligation on the Tribunal to issue a written notice if it considers that an Unless Order has been complied with. However, if it is alleged that it has not then this must lead to a determination of whether the Order has been complied with and has taken effect, or not. UKEAT/0264/18/JOJ -17- A B C D E F G H[49]Further, if the conclusion is that the Order has not been complied with, and has taken effect, although that will have occurred automatically, there is an obligation on the Tribunal to issue a written notice to the parties confirming what has occurred. That is both because that is what Rule 38(1) says and because it is the issuing of such a written notice that triggers the right of a party to make an application under Rule 38(2) to have the Order set aside on the basis that it is in the interests of justice to do so. That is why such an application is treated, as the authorities confirm, as an application for relief from sanctions, as opposed to a freestanding challenge to the original Order having been made in the first place.” 22. I respectfully adopt the rigour of the EAT’s analysis, and have approached today’s hearing as a third step hearing, ie an application for relief from sanctions. I note that when I come to consider the overall circumstances, the division between the three stages indicated by the EAT becomes blurred. When considering what is serious and significant, and the overall circumstances, it seems to me that while I make my decision on the material before me today, and in accordance with the principles applicable to relief from sanctions, I am bound to give some consideration to the employment and litigation history. 23. As this an application for relief from sanctions, the tribunal should have regard to the approach of the civil courts and the guidance in Denton v White [2014] EWCA Civ 906. 7 ph judgment + cm Nov 2014 wip version24. The claimant remains in default of the tribunal’s October order for disclosure. The reasons are in short, the muddle of misunderstanding set out above. The default is serious and significant, particularly in relation to the witness statement.25. The claimant was dismissed after nearly 30 years’ service for a matter which (it was agreed today) only came to the respondent’s attention because the claimant volunteered it. I accept that there is a dispute as to when she volunteered the information, and how and why. I am duty bound to give effect to the “equality of arms” provision of the overriding objective, particularly in a case where there is undisputed evidence of stress related illness, and where I find, as I now do, that the claimant’s misunderstanding of many aspects of law and procedure has let her down badly.26. It seems to me that what has happened is that during the first half of 2019 the claimant became convinced that she had to prove all the elements in her case; in particular in order to demonstrate that Judge Warren’s precis was wrong or incomplete; and that she thought that by repeatedly asking for documents from the respondent, something might be found to which she had to refer in her witness evidence. She also thought that she could not advance a case which was not cross-referenced to a document at every point.27. Ms Robinson told me that the respondent’s witness statements had been completed. She expressed concern that reinstatement would lead to trial possibly up to six years after dismissal. She told me that Ms Lee, the dismissing officer, has retired from service, and may not wish to attend, particularly if the public health situation has not improved by the time of hearing. She expressed concern that a fair trial had become impossible.28. I fully accept that Ms Lee may not be able to add in oral evidence in 2021 to what was written in 2015. However, the Civil Service is a paper heavy employer, and I can see no objection to her giving evidence in 2021 which is reliant on 2015 documentation. I am therefore relatively untroubled by Ms Robinson’s submission that the passage of time generally renders fair trial impossible. The trial will focus on the paperwork from the time, and the tribunal is unlikely to expect detailed recollection from a witness giving evidence many years after the event. I add that the respondent has the right to apply for a witness order, but it is commonplace now for witnesses to give evidence by video link. Certainly, that would be acceptable in principle.29. I am much more troubled by Ms Robinson’s submission that if the claim is reinstated, the claimant will conduct it in future in exactly the same way which caused problems in the past. The claimant’s responses gave a number of indications at this hearing that that might happen, and I could see that the claimant’s assurances about the future conduct of the claim might have been given opportunistically in order to secure reinstatement. It is trite to say that past behaviour is a good predictor of future behaviour.30. I accept that the respondent has found the claimant a demanding opponent, but I must bear in mind, as a reminder that there is a boundary between being a difficult opponent, and behaving so unreasonably as to lose one’s right to be 8 ph judgment + cm Nov 2014 wip version heard, the observation of Sedley LJ in Blockbuster Entertainment Limited v James [2006] IRLR 630: “The courts and tribunals of this country are open to the difficult as well as to the compliant, so long as they do not conduct their case unreasonably.”31. In concluding on balance that it is right to allow the claimant’s application, set aside the strike out and unless order, and re-formulate a case management order, I repeat and stress in the next paragraph one overarching comment which I made a number of times in different ways during this hearing.32. I am reinstating the claim on the footing that the claimant will move forward in accordance with the order made separately, and will not try to return to the disputes, mistakes and misunderstandings which led to strike out in 2019. If she does, she is at risk of the claim being struck out. I have made specific provision for this eventuality in the accompanying Case Management Order.[50]Ms Langan sent a draft of her outcome letter that day to HR and, on 1 March 2016, a long and detailed letter was sent to the claimant, informing her that the appeal was unsuccessful. Ms Langan dealt with the claimant’s grounds for appeal individually, providing reasons for her findings on each one. She also informed the claimant that she also needed to consider whether there was new evidence which could justify a change in the decision to dismiss; whether the decision was unfair because policy had not been applied correctly. She went on to say that there was no new evidence or any evidence that policy had not been applied correctly. She concluded: “In the absence of any further mitigation I am satisfied that by deliberating failing to immediately inform your employer of your arrest on 30 January 2015 on suspicion of murder that you have failed to behave in accordance with the standards of expectations of MoJ/HMCTS employees. As a result of your late disclosure of your arrest, I find this does constitute gross misconduct by potentially bringing the MoJ into serious disrepute”[51]Ms Langan gave her explanation for her decision to make the decision in the absence of the claimant. Law and submissions[52]The legal tests are as set out in Employment Judge Lewis’ summary at paragraph 4 above and are those must be applied in an unfair dismissal claim. The relevant statutory provisions are set out in s98 Employment Rights Act 1996 (ERA). Section 98(1) and(2) contain the potentially fair reasons for dismissal including “conduct”. The burden of showing a potentially fair reason rests on the respondent.[53]As to the fairness or otherwise of the dismissal, if I am satisfied that there was such a potentially fair reason, Section 98 (4) states;- “Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)- a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and b) shall be determined in accordance with equity and the substantial merits of the case”[54]I am also guided in my deliberations, because this is said to be a conduct dismissal, by the leading case of British Home Stores v Burchell [1978] ICR 303 which sets out the issues which I should consider including whether the respondent had a genuine belief in the conduct complained of which was founded on a reasonable investigation and whether a fair process was followed. The investigation should be one which is fair and reasonable and the band of reasonable responses test applies to that part of the process as well as to the overall consideration of the fairness of the sanction (Sainsburys Supermarkets Limited v Hitt [2003] IRLR 23)[55]I must also not substitute my view for that of the respondent, a point emphasised in Iceland Frozen Foods v Jones [1982] IRLR 439 (and reaffirmed in Foley v Post Office and HSBC Bank Ltd v Madden [2000] ICR 1283). Rather, I must consider whether the dismissal fell within a range of reasonable responses.[56]The respondent’s representative, in submissions, reminded me of the many opportunities the claimant had to inform the respondent of the arrest and of the conviction for breach of a parenting order. The respondent submits that the dismissal was for the potentially fair reason of conduct and that there was a breach of trust and confidence. The respondent further submits that the investigation was manifestly fair, that there was a genuine and honest belief in the conduct, as shown by the documents and all oral evidence. It is submitted that dismissal does not fall outside the range of reasonable responses.[57]The claimant was not present to make any submissions but I assumed she would have made the same points she made in her letter of appeal. She refers to mitigating factors and to the unfairness of the decision to dismiss. I also looked at what is recorded in paragraph 4 under 6.5.1 – 6.5.3 from the preliminary hearing with Employment Judge Lewis about disputing the reason for dismissal as well as those recorded under paragraph 2 under 28.1 – 28.12 from the preliminary hearing with Employment Judge Warren as to the basis of her case. Conclusions[58]I consider the first question as outlined above, that is whether the respondent has shown a potentially fair reason for the dismissal. As recorded at paragraph 2 (28.9.1 and 28.9.2) the claimant there stated that she believed her absence record and her refusal to participate in a conspiracy were the reasons, coupled with bias against her. I have found no evidence to support those assertions and there is no reference in the many documents I have been taken to.[59]The claimant was asked again about this at the later preliminary hearing and her reply is as recorded at paragraph 4 (6.5.1 - 6.5.3), where she put forward no alternative reason. The claimant agrees that the reason stated by the respondent was conduct but suggests that was not the real reason. She has said nothing about that in this hearing or in any documents that I can see so I cannot be sure what she means by that. There is no evidence that there was any other reason than the matter with which Ms Lee was concerned. Indeed, given that Ms Lee had lifted the claimant’s suspension because of workload concerns only three months earlier, it seems unlikely that there was any other reason. On all the evidence before me, the respondent has shown that the reason for dismissal was the claimant’s conduct.[60]I consider next the question of whether the respondent had a genuine belief in the misconduct founded on a reasonable investigation. There is little doubt about the facts here. The section in the conduct policy is clear. The duty is to inform the respondent immediately of arrest, imprisonment, charge or conviction. That did not happen. The investigation considered that and the reasons provided by the claimant and I find it was a reasonable investigation in all the circumstances.[61]As to whether a fair procedure was adopted by the respondent, there seems little doubt that the disciplinary procedure was followed. There was an investigation with the claimant being given an opportunity to explain her conduct. There was then an investigation report. A disciplinary hearing was arranged with sufficient time allowed for the claimant to provide any further explanations and Ms Lee explored other aspects as brought up by the claimant. The claimant was represented at all hearings. Notes were taken and shared with the claimant so that all information was available to her.[62]I have considered the fairness of the appeal, given that the decision was taken without the claimant having the opportunity to address the appeal officer. The claimant has raised an issue about the time of the appeal being inconvenient because of the need to drop her son at school. I do not accept that suggestion and it was clear it had not been communicated to the respondent or indeed the claimant’s own trade union representative. Ms Langan was entitled to consider the claimant’s appeal letter and all other relevant information when the claimant failed to attend on time. The claimant has not been able to say whether there was something she would have said to Ms Langan that had not already been communicated in her appeal and at the other hearings she did attend. Considering the fairness of the dismissal process in the round, I find that a fair procedure was followed.[63]Finally, I must consider whether dismissal fell outside the range of reasonable responses. I must consider this bearing in mind the respondent’s size and administrative resources which I accept are extensive. I accept that the respondent believed that the claimant’s conduct was serious and a clear breach of the conduct policy which is unequivocal. A reasonable employer would be entitled to consider that the claimant’s explanations for her late disclosure of the arrest and then of a criminal conviction relating to another matter were so serious as to amount to gross misconduct. The respondent considered the mitigation provided by the claimant for her actions. It is not for me to substitute my view for that of the respondent, as long as it has acted reasonably. In all the circumstances of this case, I cannot say that the decision to dismiss fell outside the range of reasonable responses.[64]The dismissal was not unfair. The claimant’s claim is dismissed.