Mrs K Segor v Secretary of State for Justice and Mr M Spellman: 3305426/2022
EMPLOYMENT TRIBUNALS
Case No 3305426/2022
Between
Mrs Katia SegorClaimantSecretary of State for Justice and Mr M SpellmanRespondent
Before
Employment Judge Andrew Clarke KCMr B Malik (instructed by Counsel) for claimantDate 8 November 2023
JUDGMENT
[1]The claimant’s application to amend the claim form is refused and that application is dismissed in its entirety.[2]The claims for harassment brought against the first and second respondent were presented outside the primary limitation period found in section 123 of the Equality Act 2010. The claimant having failed to persuade the tribunal that it would be just and equitable to extend time for the presentation of those claims, they are dismissed against both respondents.[3]All claims against the second respondent having been dismissed, the second respondent is no longer a party to these proceedings.[4]As set out in separate case management orders, the hearing listed to take place over 8 days in November 2024 is vacated and the claim of victimisation against the first respondent will be heard on 09 and 10 October 2023.
REASONS
Introduction
[1]This open preliminary hearing was set down by Employment Judge Alliot at a preliminary hearing on 27 January 2023. In the case management summary four matters were listed to be dealt with at this hearing. These were:(1) The claimant’s application to amend,(2) Any strike out or deposit order application made by the first respondent,(3) The strike out application made by the second respondent to be followed by a deposit order application, if appropriate and(4) Any further necessary case management.[2]It is agreed between the parties that the intention of the Employment Judge as expressed on 27 January was that the issue of whether the claims for harassment were presented in time was to be dealt with substantially at this hearing, rather than being dealt with by way of a strike out application. Although the order does not say that, it provided for witness evidence on the part of the claimant and (if so advised) either respondent and for disclosure relevant to the claim in time issues. Given that all material evidence on those issues is before me and having regard to the understanding with which all parties proceeded towards this hearing, I am content to deal with the out of time issue substantively today.[3]It was agreed between the parties that they would prefer to deal with the application to amend first before turning to the claim in time issues as this would enable the tribunal to understand precisely to which claims the claim in time issues would relate. That appeared to me to be a sensible and just approach and it is the one adopted.[4]In those circumstances I turn first to deal with the application to amend the claim form. The claim was presented on 11 May 2022. The claimant was employed by the first respondent on 22 May 2017, eventually being promoted to the post of a Band 4 Supervising Officer. From November 2021 to May 2022 she was acting up in a Band 5 post. On 31 January 2022 she raised a complaint of sexual harassment by the second respondent. It was suggested to her that she raise her complaints with the police and she did this in February 2022. The CPS has now concluded that the matter should not be taken any further. Internal investigations, which appear to have been paused while the police investigation took place, are now continuing to a conclusion.[5]The claim as presented to the tribunal in May 2022 alleged sexual harassment (against both respondents) and victimisation. The harassment allegations relied upon an incident in June 2019, one in July or August 2020 and one in August 2021. The claimant now seeks to add further incidents in December 2019, July 2020 and August 2020 and to base claims upon them.[6]So far as the victimisation claim is concerned three protected acts were originally relied upon. These took place in May 2019, January (or possibly February) 2022 and in February 2022. There was only one alleged detriment, namely the withdrawing of her temporary promotion in March 2022 (effective in May 2022). The proposed amendment adds four more alleged protected acts (taking place in December 2018, November 2020 and January 2022, when two acts are alleged). It also seeks to add five more detriments; these are said to have taken place in February and April 2022, over the period of March to June 2022 and in July and August 2022.[7]The claimant was legally represented at the time her claim form was submitted and, save for a very short period after the January preliminary hearing, has been legally represented throughout. I was provided with no explanation (either in her witness statement, or in submissions) as to why these proposed new claims did not appear in the original claim form.[8]I should make clear at this point that although this issue was considered in her cross examination, I heard the claimant’s evidence after I had made my decision as regards the application to amend. However, I note that no explanation was provided in that oral evidence either.[9]It was noted by Mr Malik on the claimant’s behalf that several of the matters upon which she now seeks to rely were referred to in a letter sent to the employment tribunal in August 2022 in response to an order to particularise her claim. It was not explained why no application was made to amend at that time or why the application to amend intimated to Employment Judge Alliot was in respect to the addition of direct sex and race discrimination claims and not in relation to these matters. I note that Mr Malik made clear at the outset that there was no application to amend to add direct sex and race discrimination claims and, indeed, none are set out in the proposed amended particulars of claim.[10]Although the proposed amendments were all contested by the respondents, the parties have helpfully produced a draft list of issues which are agreed between them to reflect both the claim as originally pleaded and the proposed amendments. The proposed amendments are identified (where reflected in that list of issues) by the text being underlined. This has proved to be a very helpful document in analysing the impact on the case of the addition of the proposed new factual allegations and claims.[11]Ms Balmer, for the first respondent, produced a written skeleton argument dealing both with the application to amend and with the time issues. In that document she briefly summarised the relevant law concerning applications to amend. Neither Mr Harris, nor Mr Malik, took issue with that summary.[12]So far as material the agreed position with regard to the applicable law can be summarised quite shortly. I begin by noting the comments of the then president of the EAT (Langstaff J) in Chandhok v Tirkey [2015] IRLR 195 regarding the role of pleadings in an employment tribunal context. He said the following, at paragraph 16: “The claim, as set out in the ET1, is not something just to set the ball rolling, as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely on their say so. Instead, it serves not only a useful but a necessary function. It sets out the essential case. It is that to which a respondent is required to respond.”[13]I have reminded myself of the well-known dicta with regard to amendments found in Selkent Bus Co v Moore [1996] IRLR 661. The then president of the EAT noted that whilst the tribunal has a general discretion to grant leave to amend a claim under its case management powers. This is a judicial discretion to be exercised “In a manner which satisfies the requirements of relevance, reason, justice and fairness inherent in all judicial discretions.” In that case the president produced a non-exhaustive list of relevant factors that a tribunal might be expected to consider with regard to amendments. These are(1) the nature of the amendment,(2) time limits,(3) the timing and manner of the application and(4) the balance of hardship and injustice to the parties.[14]I note that in Vaughan v Modality Partnership [2021] IRLR 97, HHJ Tayler described the core test as being the fourth of those matters. However, of course, he did not seek to say that the other matters had in some way ceased to have relevance. Hence, in due course, I shall consider all four of those matters, but conclude with my analysis of the balance of injustice and hardship in allowing or refusing the application.[15]I was also reminded of what Underhill LJ said at paragraph 48 of Abacrombie v Aga Rangemaster Ltd [2014] ICR 2009 with regard to the importance of looking to see the extent to which an amendment would change the basis of an existing claim or raise new causes of action. He said that this requires: “[a] focus not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of enquiry than the old: the greater the difference between the factual and the legal issues raised by the new claim and by the old, the less likely it is that it will be permitted.”[16]It is trite law now that a claimant may apply to amend a claim form to include a claim which did not exist at the time the claim form was originally presented.[17]Against that legal background, I turn first to consider the nature of the amendments sought. They raise a whole series of new factual allegations, being new alleged instances of harassment by the second respondent, new protected acts and new detriments. The scope of the factual enquiries required will be greatly increased if the amendments are allowed. In particular, a great many more witnesses will have to be involved.[18]I turn next to the timing and manner of the application to amend. The application was made in February 2023, some nine months after the claim form was originally filed. There is no explanation (despite prompting) for why matters taking place prior to May 2022 were not included within the claim form itself and no explanation why the new detriments said to post date the presentation of the claim form were not the subject of prompt applications to amend.[19]The presence of some of the new allegations (at least in outline) in the letter of August 2022 does not, in my view, assist the claimant. Rather, it begs the question as to why permission to make amendments was not sought at that stage. I reiterate that the claimant was then (as at almost all material times) legally represented.[20]I now turn to the matter of time limits. The claimant accepts that the last act of harassment took place on 09 August 2021 and that matters sought to be added into the claim which took place later on in time are not alleged to be acts of harassment, but to form part of the background narrative. I was not pressed, at this juncture, to see the acts of harassment as being part of a continuing series of acts (for the purposes of section 123 of the 2010 Act). This was, no doubt because of the acceptance that the last act in the sequence took place on 09 August 2021. Hence, the claim, even if based on a series of interrelated acts, would still have been presented outside the primary limitation period.[21]So far as the new allegations of harassment are concerned, the claims in respect of them are sought to be added very substantially outside the primary limitation period. It was not suggested to me that I should consider the impact of the secondary limitation period (based on justice and equity) at this stage. However, had I formed the view, when considering the claim in time points, that the secondary limitation period could properly be invoked, I would have revisited this aspect of my reasoning and conclusions in order to see whether that would have any impact upon the final conclusion reached. In the event, this was unnecessary.[22]With regard to the victimisation claim, the claimant seeks to add not only additional protected acts, but also additional detriments. It is the timing of the acts of detriment to which I must look in order to determine the application of the time limits and not to the timing of the additional protected acts relied upon. However, the dates of the new protected acts (and the evidence required in respect of them) is relevant when looking at the balance of injustice and prejudice.[23]It is to the balance of injustice and prejudice that I now turn. So far as the harassment allegations are concerned there are no documents relied upon. This will be a matter for oral evidence from those concerned. The events took place some years ago and I bear in mind that parliament chose to provide a three month limitation period as found in section 123. A respondent (perhaps, especially an individual respondent) is entitled to know of the claims being brought whilst maters remain fresh in the minds of those concerned. Where incidents such as those relied upon here are in issue, the passage of time makes it much more difficult for the witnesses to recollect not only what happened, but the context in which it happened. For example, whether the relevant actors met on the day in question will need to be considered and, if so, what happened. I bear in mind that the relevant actors are people quite likely to have had routine dealings on a regular basis. If they did meet (or are likely to have done) the passage of time makes it much more difficult to investigate whether others might be able to provide relevant circumstantial evidence, such as evidence of the behaviour of the parties immediately after their meeting.[24]So far as the harassment and victimisation claims are concerned the factual ambit of the case is very greatly increased by the amendment. This includes the evidence necessary to establish the new protected acts and their link to the allegedly associated detriments . The fact that eight further individuals are named as being participant emphasises that point. I also note that the allegations of detriment are, in the main, put in very general terms even now. For example, the issue which appears at paragraph 13(i) of the draft agreed list of issues relates to named individuals who are said to have interfered in and influenced the police investigation, but no particulars are given of what each of them is said to have done.[25]I consider that the prejudice to the respondents of allowing these amendments will be considerable, conversely the prejudice of the claimant will be much less. She will still have both harassment and victimisation claims (subject, in the former case, to the out of time points I have yet to consider). Indeed, so far as victimisation is concerned, she will be left with her principal detriment which is already set out in the claim form, namely that her temporary promotion was brought to an end. The respondents submitted that this appeared to be her principal detriment, especially when viewed in financial terms, and Mr Malik did not dispute this.[26]In the circumstances, I am not persuaded that it is just to allow the claim to be amended in any of the ways sought and the application to amend is refused.[27]I now turn to the issue of whether the claims for harassment were presented out of time.[28]There is no issue as to their being presented outside the primary limitation period of three months found in section 123. The last incident is agreed to have taken place (if it took place at all) on 17 August 2021, so the claim ought to have been brought by 16 November 2021. It was not brought until 11 May 2022.[29]The claimant is relying on three individual incidents between 21 June 2019 and 17 August 2021. As already noted, the middle incident was in July or August 2020. The alleged incidents involve requests to sleep with the second respondent, slapping the claimant on the bottom, grabbing her bottom and asking to touch and (without consent) touching her breast. I doubt that this could be described as conduct extending over a period (for the purposes of section 123) given the roughly 12 month intervals between incidents. However, I have heard limited evidence with regard to the incidents themselves and their impact on the claimant and so I will proceed on the basis that the claimant might be able to establish that this was conduct extending over a period. Even then the claim is one presented six months outside of the primary limitation period.[30]Each of the parties recognised that the exercise of the tribunal’s discretion to extend time in discrimination cases is the exception rather than the rule (see Robertson v Bexley Community Centre [2003] IRLR 434). Hence, the burden is on a claimant who has presented her claim out of time to convince the tribunal that time should be extended into the secondary limitation period. That secondary limitation period can only be invoked if the tribunal is satisfied that it is just and equitable to extend time in the circumstances of that case.[31]In exercising that “just and equitable” discretion tribunals are encouraged to consider the circumstances of the case generally and, in particular, the factors set out in section 33 of the Limitation Act 1988, in so far as they are relevant to the particular case in question. Those factors are as follows: 1. The length and reasons for the delay 2. The extent to which the cogency of the evidence is likely to be affected by the delay 3. The extent to which the party sued has cooperated with any requests for information 4. The promptness with which the claimant acted when she knew of the facts giving rise to the cause of action, and 5. The steps taken by the claimant to obtain appropriate professional advice when she knew of the possibility of taking action.[32]I remind myself, in that context, that the starting point for the consideration of the exercise of the just and equitable jurisdiction is to identify the actual cause of the failure to bring the claim within the primary limitation period (see, for example, Accurist Watches Ltd v Wadher [2009] All ER(D) 189.[33]Hence, I turn first to examine why the claim was made outside the primary limitation period. In her witness statement the claimant identified three reasons for this. First, her health. Secondly, her children’s health and the time taken to deal with their needs and problems. Thirdly, not knowing that she could bring a claim.[34]Those reasons fell away in cross examination. Her health and that of her children did not prevent her from carrying out her job and making the complaints which she relies upon as protected disclosures. Her state of health and theirs was the same (roughly speaking) at all material times during her employment and, in particular, when she did bring the claim. Her evidence trying to link the delay to those health matters was unconvincing and I reject it. I accept that both she and her children have suffered from ill health. Although the documentary evidence she has produced relates to more recent times, I accept her evidence that the problems (for her and her children) have persisted for some years. However, those problems did not significantly hamper her bringing a claim.[35]It became clear in cross examination that the claimant knew about the concept of unlawful discrimination and has complained of it herself in the past. She was aware that what she alleged amounted to a sexual assault of which she could complain to the police or in respect of which she could raise a grievance. Despite her initially indicating that she did not know how to raise a grievance, or what a grievance was in practical terms, it became clear that raising a grievance was something that she as a manager had advised others to do. I consider that at all material times she was well able to raise her complaints both internally and to the police had she so chosen.[36]She accepted that insofar as she lacked detailed knowledge of Employment Tribunal procedures, such as how to commence a claim, she could have obtained information on the internet and/or asked a solicitor, which is precisely what she eventually did.[37]In her evidence she said that she was ashamed to raise such matters and feared that raising them would damage her career. Nothing of that appears in her witness statement. I accept that she made a deliberate decision not to complain or to begin proceedings. She was unable satisfactorily to explain to me why she changed her mind and did complain and then began proceedings when she did. The respondents note that it is their case that the true explanation is that her complaints her fabricated and were made only by way of reaction to the withdrawal of her temporary promotion, which she resented. On the material before me, I am unable to reach such a finding. However, I am unable on that evidence to say that the claimant has persuaded me as to her reason or reasons for failing to act earlier or to act when she did. I found her evidence confused and inconsistent. It was insufficient to provide a basis upon which I could make the appropriate findings.[38]The delay in this case is significant. Even if there was conduct extending over a period of time the quality of the available evidence as regards each of the three links in that chain will have been compromised by the delay. As I have already noted, this is a case which will turn on oral evidence from the two alleged participants and from anyone else who might have seen or heard something relevant (for example how the two behaved in the aftermath of relevant meetings). Such evidence is notoriously more difficult to locate, and its quality is likely to be diminished, by reason of the passage of time.[39]So, I am faced here by a significant delay in bringing proceedings impacting adversely on the likely evidence and which delay the claimant cannot satisfactorily explain. She did not act promptly in this case, rather she delayed for reason she does not explain satisfactorily.[40]The claimant could have obtained professional advice much earlier than she did and acted on it. She accepted as much in cross examination. She chose not to do so for reasons she was unable to explain.[41]Parliament chose a three month primary limitation period for such cases as these. Parties are expected to get on with making their claims so as to enable tribunals to work with the best reasonably available evidence. The claimant chose not to do so.[42]I have considered whether this is one of those cases where the evidence relating to the harassment issues will have to be heard and ruled upon in relation to other issues in the claims which were presented in time. I am satisfied that this is not one of those cases. In so far as the protected disclosures make any reference to past events relevant to the harassment issues, there will be no need for the tribunal to determine the accuracy of what was said. It will be necessary only to establish what was said.[43]In all the circumstances I consider that the harassment claims must be dismissed. The claimant has failed to satisfy me that it is just and equitable to extend time into the secondary limitation period for the claim to be presented. The result is that all claims against the second respondent have been dismissed and that respondent will play no further part in these proceedings. RECONSIDERATION JUDGMENT/REASONS 1. I conducted a Public Preliminary Hearing (“PH”) in this case on 13 March 2023. The Record of that PH was sent to the parties on 16 April, together with (in a separate document) my Judgment (with Reasons) dealing with the Claimant’s application to amend to add further causes of action and my determination of certain claim in time issues. 2. By several subsequent emails, the Claimant has raised a number of issues and the first Respondent has responded to them. Those issues are, or relate to: 2.1. Extensions of time to comply with various Orders. 2.2. Reconsideration of my refusal of the application to amend. 2.3. Reconsideration of my determination of the claim in time points. 2.4. An application for a costs Order against the First (now sole) Respondent. I shall deal with each in turn. Extensions of Time 3. I made various Orders with regard to the finalisation of the List of Issues, the provision of a Schedule of Loss, the exchanging of Lists of Documents, the agreement of the contents of a Hearing Bundle and its preparation and provision to the claimant. The final Order, in terms of time, was for the provision of the bundle to the claimant on 22 May. Hence, time for compliance with all such Orders has long passed. 4. I note that the claimant appears to have new solicitors. Taylor Wessing wrote to the Tribunal on 28 April 2023 saying that they now represented her. I have seen no correspondence from them (or from the Respondent) indicating that any attempt has been made to comply with the Orders, or requesting specific extensions of time to particular dates. The hearing of this matter is scheduled for October 2023. I am of the view that a timetable could be produced which would enable the case to be heard at that time. I would urge the parties to agree such a timetable and to ask that the Tribunal varies my orders to incorporate it, but in the interval to work towards it. 5. If no agreement can be reached, the parties must urgently write to the Tribunal explaining the inability to reach agreement and suggesting what they each see as the way forward. I am conscious of what is said about the claimant’s mental health in the emails. There is a lack of detail, in particular as to the impact on her ability to conduct the litigation. If that is to be relied upon, then further detail (preferably including, or by way of, a detailed medical report) will be required. Reconsideration of the refusal to allow amendments 6. The Respondent points out that this application appears to have been made outside the 14 day time limit in Rule 71 of the Rules of Procedure. No specific application was made to extend time under Rule 5, but having regard to the claimant’s mental health and the short period of delay, I extend time in respect of both reconsideration applications. 7. This application is mentioned, very briefly at the end of the email of 11 May. Rule 71 requires that any application for reconsideration should set out why the reconsideration is said to be necessary. Here all that is said is that the “new evidence” that the claimant’s alleged assailant has been charged with assaulting her shows that her claims should be allowed to proceed. 8. I accept (for present purposes) that he has been, or is to be, charged. I also note (as my Reasons record) that I was told that the CPS had decided to take the matter no further. Indeed, I was told that it was for that reason that the internal investigation was now continuing. 9. Neither of those matters played any part in my reasoning process when deciding that the amendments should not be allowed. I recorded the (then agreed) facts by way of background and to explain the current state of affairs. My reasoning process is explained in the Reasons. 10. Although this point is not made, I have considered whether it might legitimately be argued that because a criminal court is now going to look at relevant factual matters, this would suggest that a Tribunal should be able to do so. I do not consider that an attractive argument. I do not know which, if any, of the matters the subject of the proposed amendments is the subject of the charges against the alleged assailant. Furthermore, I consider that it is for me to carry out my own analysis of the proposed amendments in accordance with the appropriate principles of law. 11. In those circumstances I consider that there is no reasonable prospect of my decision being varied, or revoked and I refuse this application under Rule 72. Reconsideration of the claim in time judgment 12. The claimant’s email of 11 May 2023 sets out four reasons which are said to require a reconsideration. I shall deal with each in turn. 13. First, she says that, on the invitation of the Respondent’s counsel, I departed from the direction given at the previous PH. This is a reference to my considering the claim in time issue as a substantive issue, to be finally determined by me, rather than on a strike out basis. This is dealt with in detail in my Reasons. Although the previous PH Orders suggested that my PH was to consider whether to strike parts of the claim out as being presented out of time, all parties agreed that this had not been the previous judge’s intention and that all representatives had prepared on the basis that this issue was to be finally determined by me. 14. Secondly, the claimant alleges that she had been prevented by the First Respondent from producing further documents for use at my PH. She refers to attached emails which are said to demonstrate this. I do not so understand those emails. However, I consider that it is of greater significance that neither the claimant, nor her counsel, suggested that there were further relevant documents which she could have produced (or wished to rely upon) either in her witness statement, her oral evidence, or in submissions. On the contrary, her counsel told me that he had prepared to deal with the issue of time limits on the basis that I was to determine it once and for all. The claimant has not produced (or described) any document upon which she wished to rely, but was unable to do so. 15. Thirdly, the claimant refers to the CPS charging decision with which I have already dealt. That the alleged assailant had, or had not, been charged played no part in my decision on the claim in time issues. 16. Finally, the claimant refers to the alleged misdescription of the alleged assailant’s job title in the First Respondent’s written submissions. I note that no correction was sought by the claimant at the PH. Neither that job title, nor the relative status of that individual and the claimant, played any part in my decision on the claim in time issues. 17. It follows that I consider that there is no reasonable prospect of my judgment being varied, or revoked as regards the claim in time issues and I refuse this application under Rule 72. Costs 18. The claimant seeks a costs order against the Respondent. I do not consider that any proper basis for my making such an Order has been advanced and I decline to make one.[1]The claimant was employed by the respondent on 22 May 2017, initially as an Entry Level Grade 2 Operational Support Grade. By a claim form presented on 11 May 2022, following a period of early conciliation from 23 March to 27 April 2022, the claimant brings a complaint of victimisation (sections 27 and 39 Equality Act 2010).
The issues
[2]Both parties have drafted lists of issues. These differ slightly but, in our judgment, are not materially different.[3]Taken from the claimant’s list of issues, the issues are as follows:- “THE CLAIM The claimant’s sole claim is one of victimisation contrary to sections 29 and 39 of the Equality Act (the “EQA 2010”). ISSUES ON LIABILITY Prohibited circumstances. Did one or more of the prohibited circumstances under which it is unlawful to victimise an employee within the meaning of section 39(4) EQA 2010 occur? Namely did the respondent victimise the claimant: As to the terms of the claimant’s employment; In the way the respondent afforded the claimant access, or by not affording the claimant access, to opportunities for promotion, transfer or training, or for any other benefit, facility of service; and/or By subjecting the claimant to any other detriment. The protected act alleged concerns the disclosures made by the claimant to Governor Nicola Marfleet at a meeting on 2 February 2022. [As the facts of the disclosures made and that they amount to a protected act are admitted by the respondent, so we do not set out the nature of the allegations in this decision.] Alleged detriment. Did the respondent subject the claimant to the detriment of changing her job role and pay grade? [Expressed in the respondent’s list of issues as: Did the respondent subject the claimant to a detriment by the respondent when, at the end of April 2022, in the Governor’s office, she was told by Governor Marfleet that her temporary promotion would end in May 2022?] Because of protected act If so, was any such treatment by the respondent because the claimant had done a protected act (whether consciously or subconsciously and whether as a sole or significant influence)? Remedy [Not set out here as not relevant]”
The law
[4]Section 39(4) provides that:- “(4) An employer(a) (A) must not victimise an employee of A's (B)— (a) as to B's terms of employment;(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for any other benefit, facility or service; … (d) by subjecting B to any other detriment.”[5]As per the IDS Employment Law Handbook “Discrimination at Work” at 19.13: “In the light of the current wording, we would submit that the above three stage test can be adapted as follows:- Did the alleged victimisation arise in any of the prohibited circumstances covered by the Equality Act? If so, did the employer subject the claimant to a detriment?, and If so, was the claimant subjected to that detriment because of having done a protected act, or because the employer believed the claimant had done, of might do, a protected at?”[6]Further, as per the IDS Handbook at 19.59 “Detriment “because of” protected act: “The essential question in determining the reason for the claimant’s treatment is always the same: What, consciously or subconsciously, motivated the employer to subject the claimant to the detriment?”[7]In addition, Ms Balmer, on behalf of the respondent, provided us with closing submissions wherein she has made submissions on the law and we record that we have taken those into consideration.[8]In addition, Mr Jackson, on behalf of the claimant, drew our attention to the case of Alcedo Orange Ltd v Mrs G Ferridge-Gunn [2023] EAT 78 wherein His Honour Judge Tayler cited with approval an extract from the case of Reynolds v CLFIS 9UK) Ltd [2015] ICR 1010 at paragraphs 33-36 dealing with decision makers and the correct approach to be adopted.
The evidence
[9]We were provided with a hearing bundle running to 700 pages. The claimant also put in a bundle of 45 unpaginated documents which has not been referred to at all.[10]We had witness statements and heard oral evidence form:10.1 The claimant10.2 Ms Nicola Marfleet, Governor of HMP Woodhill
The facts
[11]The claimant was employed by the respondent on 22 May 2017 as a Band 2 Entry Level Operational Support Grade.[12]The claimant was clearly a good and hard working employee. She began training as a prison officer on 26 March 2018 and qualified as a Band 3 Prison Officer eight weeks later.[13]The respondent operates a system of temporary promotion whereby vacancies are filled on a temporary basis by staff already at HMP Woodhill.[14]Ms Marfleet told us, and we accept, that recruitment for full time roles can be a problem and can take time. The position has to be advertised internally and externally, candidates interviewed and certain qualifications such as ‘Full counter terrorism clearance’ have to have been applied for and approved. Sometimes the recruitment process could take time as there were no suitable applicants.[15]Normally the temporary position would be pending recruitment for a substantive appointment. The temporary role would normally be advertised internally and an employee could apply and have a short interview.[16]There could be other reasons for a temporary position such as covering block leave or maternity leave. The selection process for those vacancies would not be so formal.[17]There was something of a difference in emphasis between the claimant and the respondent as to the true nature of a temporary position. The claimant has contended that “acting up” or “temping” was used as a stepping stone towards promotion to a higher band. Being asked to “act up” or “temp” a post enabled Woodhill’s senior management to fill a vacant post faster than waiting for the same person to pass the required “exam” and “board”. The suggestion was that there was an informal procedure and/or legitimate expectation as far as employees were concerned that if a vacancy became available the employee would be able to fill it on a temporary basis and that recruitment would effectively be suspended pending the employee becoming eligible for the role on a full-time basis and being able to apply for it having passed the necessary accreditation courses and received the backing of line managers.[18]The respondent’s position is that there is no such informal procedure, strategy or expectation. However, Ms Marfleet gave evidence that the length of any temporary promotion can be difficult to predict and therefore is ordinarily set at three months and then reviewed monthly at the WFP (“Workforce Planning”) meetings and extended in increments of between one to three months at a time. In line with policy, no single person should remain temporarily promoted longer than two years but on rare occasions, due to exceptional reasons, (such as a delay in pending CTC (Counter Terrorism Clearance) for a successful candidate arriving), that could be extended slightly longer. On this issue, we found some oral evidence of Ms Marfleet to be illuminating. She told us that on occasions when interviewing external qualified candidates for a substantive role they were found to be less good than the existing temporary staff acting up. Against a difficult recruiting environment, we readily understand why a perception amongst the workforce that a temporary position was a holding position before they could apply for a substantive role, became an expectation. However, we find the fact remains that for a substantive role the position had to be advertised internally and externally and promotion could not be guaranteed to those who had hitherto fulfilled the temporary role.[19]To an extent, the claimant’s understanding was borne out by her own career. On 6 April 2020 she was appointed as a temporary Band 4 Supervising Officer. Initially that was to be until 30 May 2020. However, in reality she fulfilled that temporary role until successfully being appointed in September 2021, some 18 months later. It is notable that during that time her first application for the role had not been successful. We were not told whether or not an external recruitment campaign was taking place during that period.[20]The claimant has suggested that people only step down back to their old band if they did something wrong or if they refused to sign a contract for the higher band. We do not accept that evidence. During the course of this hearing we have been referred to the monthly workforce planning meeting minutes which demonstrate that on a regular basis temporary appointments came to an end for a multitude of other reasons.[21]We note that during the course of these proceedings the claimant has endeavoured to amend her claim to include other protected acts. Although the claimant was not ultimately allowed to amend to include these matters, it is noticeable that she was contending that she had made protected acts in December 2018 and May 2019 concerning ill treatment on the grounds of her race and sex. The latter of these alleged protected acts concerned Governor Marfleet. Both of those alleged protected acts pre-date the claimant’s placement as a temporary Band 4 Supervising Officer. That suggests to us that at that stage there was no attempt to penalise or apply any detriment to the claimant as regards her promotion within the service.[22]By September 2021 the claimant was working in the Separation Unit at the prison. Her line manager was Mr Ken Tangie (Band 5). We were told and accept that the Separation Unit was a specialist unit where extremist prisoners were held on the grounds that it was deemed necessary because of their ideology, to keep them entirely separate from other prisoners. Staff working there are given additional training as part of working on that wing.[23]In 2021 HM Prison Woodhall was provided with additional funding that enabled a new Band 7 post to be created in the Separation Unit. Until that time it had been run by Mr Tangie.[24]Due to a staff member leaving there was also a vacancy for a Band 7 Deputy Head of Residence.[25]Accordingly, in September 2021, the prison advertised two Band 7 vacancies internally and externally. Some candidates were interviewed in or around September 2021 and none were successful.[26]The WFP meeting notes from 9 September 2021 state that the two Band 7 interviews were due.[27]The WFP meeting notes from 14 October 2021 confirm that the two Band 7 recruitment campaigns had been unsuccessful.[28]Consequently, the respondent had two vacant Band 7 substantive roles. It is the claimant’s evidence that on 13 October 2021 she was approached by Mr Julian Barnes who was the Senior Leader for all of HU6 Section. She was told that management wanted her to act up into a Band 5 post. She was informed that Mr Ken Tangie was going to Band 7 and that consequently she could move to Band 5.[29]The claimant accepts that she needed time to think about it as it would involve a lot of extra work and time to do it properly and she wanted to talk to her husband to ensure she had his support.[30]On 15 October 2021 she informed Mr Barnes that she would like to take the opportunity to act up as a Band 5 Custodial manager.[31]Having accepted the temporary position, on 15 October 2021 Ms Marfleet sent the claimant an email as follows:- “Hi Katia – Congratulations and thank you for being willing to help us out on the SEP Centre as a temporary promoted Band 5 from 1 November. I’m sure it will be a challenge as much as it will be an opportunity, and I want to say from day one that both Sarah and I want this to be a success for you and are here to support you.”[32]At the same time a Mr Marvin Lane was appointed to act up to the Band 7 role in the Deputy Head of Residence position. As he was a substantive Band 5, so another employee also stepped up from Band 4 to fill his position.[33]On 15 October 2021 Governor Marfleet sent a generic email to senior managers which states as follows:- “Hi Teammates, As you will be aware, our recent board to appoint Band 7s was not successful and I’m pleased that Ken Tangie has agreed to act up as Band 7 – Head of Separation Centre starting from 1 November on his return from leave. … To backfill the gap left by Ken on Sep Centre, Katia Segor will also be temporarily promoted from SEP Centre SO to SEP Centre CM from 1 November. On this occasion, we have only considered SOs trained to work on the SEP Centre for this vacancy due to the specialism of the wing. Other gaps created more widely will be decided from recent expressions of interest submitted for both B5s and 4s, filling the Dep Head of Res first, then working down in grades, filling as we go.”[34]It is noticeable that in the claimant’s witness statement she states that earlier in September 2021 a number of vacancies for “temp” CMs were advertised in Woodhill’s newsletter. She says that she discussed it with Mr Barnes and they agreed that, given that she had only just secured her role as a Substantive Band 4 SO, so she should continue to gain experience in that role before applying to move up.[35]Unusually, the temporary role that the claimant decided to fill in October had not been advertised more widely as the specialist nature of the Separation Centre meant that they needed staff who were trained to work in the Separation Centre. The claimant was actually the respondent’s second choice for the role. The claimant’s initial appointment was until 31 December 2021.[36]The WFP meeting notes from 11 November 2021 include the following:- “Band 7 – 1.00 will be looking to advertise February/March time in line with completed assessments.”[37]Ms Marfleet told us and we accept, that often there was a pause in recruitment to allow another cohort of potentially qualified individuals to emerge. If the recruitment process was repeated too quickly they would just get the same candidates applying again. Ms Marfleet was unable to tell us why only one Band 7 position was referred to in those notes.[38]In the WFP meeting notes from 9 December 2021 there is a similar reference to a Band 7 x 1 position.[39]In the WFP meeting notes from 13 January 2022 the position is clearly changed as there is a reference to:- “Band 7 – 2.00 ongoing recruitment.”[40]Hence it is clear to us that a decision had been made to readvertise the permanent Band 7 roles before the claimant’s protected act on 2 February 2022. As such those actions cannot have been taken in light of the[41]On 31 January 2022 the claimant contacted the respondent’s organisation “Tackling Unacceptable Behaviour Unit” (“TUBU”) outlining her complaints. Governor Marfleet was informed of this on 1 February 2022 and set up a meeting via teams for 2 February 2022. During the meeting the claimant made the disclosures that are agreed to be protected acts.[42]We have the minutes of the meeting with the claimant on 2 February 2022. Those notes record Governor Marfleet being sympathetic to the claimant, stating that she appreciated her bravery, expressing sorrow that she had had to live with the matters raised and assuring her that she would be protected/safeguarded from negative consequences. We find that those sentiments were genuine and not synthetic.[43]The WFP meeting notes from 10 February 2022 indicate that the recruitment process for the two Band 7 positions was “Interviews in progress.”[44]The claimant’s temporary appointment was extended in November 2021 until 31 January 2022. Although we have not seen the documentation it is clear that the claimant’s temporary position was extended for a further two months because there is a further extension from 29 March until 31 May 2022.[45]The WFP meeting notes for 10 March 2022 indicate that the Band 7 interviews had been completed and two successful candidates, Hawa Rogers and Karen Blake, had been identified. The apologies indicate that Governor Marfleet was absent from that meeting.[46]It is the claimant’s evidence that on 18 March 2022 she was informed by Mr Barnes that Governor Marfleet had decided to end her time acting up as CM. We find that that probably happened. We find that the decision was made ultimately by Governor Marfleet that the claimant’s time as a temp Band 5 would end. We find that there is nothing sinister in the fact that this is not specifically minuted in the WFP meeting notes. Having successfully identified and appointed two new Band 7 Managers, it seems to us obvious and a matter of purely administration that those parties fulfilling the Band 7 roles on a temporary basis would revert back to their substantive roles. Further, it seems to us obvious and a matter of administration that upon Mr Ken Tangie reverting back to his Band 5 role so, for a similar reason, the claimant would cease acting as a Band 5 temporary and revert back to her Band 4 role. We were told that the acting Band 7 Deputy Head of Residents, Mr Marvin Lane, also reverted back to his substantive Band 5 role. Governor Marfleet could not remember if the acting Band 5 had reverted back to his/her Band 4 position but we find that that probably happened.[47]The alleged detriment as identified in the respondent’s list of issues relates to the claimant being told at the end of April 2022, in the Governor’s office, by Governor Marfleet, that her temporary promotion would end in May 2022. There is no real issue as to whether or not that event took place and we find that it did. Further, we find that that it related to a term of her employment and was a detriment.[48]There was some delay in the new Band 7 appointees taking up their positions. This is because there was an HM Prison Inspectorate inspection into the Separation Unit scheduled for the week commencing 11 April 2022. Governor Marfleet explained to us that the reason for the delay in the new appointees taking up their positions was so that the claimant and Mr Tangie would be in a position to deal with the inspection. In our judgment that is an entirely valid reason to delay the start of the Band 7 appointees.[49]In actual fact, the Band 7 position in the Separation Unit was filled by an existing Band 7 employee. Mr Joe Lawson, from the Offender Management Unit (OMU), and the two new Band 7 appointees filled the Band 7 Positions at the Deputy Head of Residence and the OMU units.[50]We disagree with Mr Jackson who has submitted that at the end of the Band 7 recruitment process the respondent had not identified someone who was able to fulfil the Separation Unit Band 7 role. We find that they had recruited someone who was able to fulfil the role but that, for good management reasons, they had a better candidate internally to be transferred to do that role due to his greater experience of high security prisoners.[51]We note that in subsequent dealings with the claimant Governor Marfleet encouraged her to apply for other temporary Band 5 positions.
Conclusions
[52]We find that the only motivation for the respondent’s decision to terminate the claimant’s temporary position as a band 5 was that Mr Ken Tangie was returning to that role. We find that the only reason for Mr Ken Tangie returning to his Band 5 position was that a permanent Band 7 employee was to be transferred to fill that position.[53]We find that the claimant was not subjected to a detriment because of the[54]Consequently the claimant’s claim is dismissed. The case of Plaistow v Secretary of State for Justice – case number 3400502/2016[55]At the start of this hearing we were handed a decision of the Employment Tribunal in a case involving Mr B Plaistow v Secretary of State for Justice. This was a decision of the Employment Tribunal issued by Employment Judge Ord on 5 February 2019. The hearing of the case had taken 25 days and the decision contained in 419 paragraphs over 93 pages. Ms Balmer, on behalf of the respondent, complained that she had only been given that decision shortly before the hearing began. We determined to deal with any issues arising as and when they arose. This would give an opportunity to Ms Balmer to consider the case.[56]At the beginning of day 2 of this hearing Ms Balmer, on behalf of the respondent, complained that Mr Jackson, on behalf of the claimant, had informed her that he intended to cross examine Governor Marfleet about some of the conclusions said to be contained within that decision. Her objections were that it was inadmissible as evidence of fact and could only be relied upon as matters of opinion, that it would involve a mini trial within a trial given the length of the judgment and that any conclusions were not relevant to our decision making. Mr Jackson sought to rely on the contents of the decision as relevant to the issue of Governor Marfleet’s credibility.[57]I record that we obviously did not have an opportunity to read the entirety of the decision. We were not taken to the parts that are said to be relevant.[58]Neither party made any lengthy submissions to us on the law that we should apply. We were not in a position to research any law. Consequently my advice to the panel was to approach the issue on the basis of relevance and fairness.[59]We concluded as follows:-[60]That cross examination or reference in submissions to findings of another tribunal based on different facts would not assist us as to the credibility of Governor Marfleet.[61]We consider that it would not be fair to Governor Marfleet to cross examine her on findings of another tribunal in circumstances where she may want to refer to other material in justification of her position. Further, we find that it would not have been fair to refer to the decision in closing submissions if they impugned her integrity and she had not had an opportunity to answer them.[62]We find that to allow questioning would not have been proportionate as it would inevitably have lengthened the trial process and resulted in an adjournment of this hearing which has only been listed for two days. For the tribunal to read the 93 page judgment itself would have taken a considerable amount of time.[63]Consequently, we ruled that matters arising from the decision in Plaistow should not be the basis of cross examination or submissions on the basis that it would not be relevant, would not be fair and would not be proportionate.[64]As it happens, when Mr Jackson tried to reopen the issue in submissions, we were informed by Ms Balmer that Governor Marfleet had given evidence in about 25 other cases. It is entirely conceivable that in her own defence this issue could spiral out of control with Governor Marfleet wanting to bring other decisions to our attention where she had been found to be a credible and reliable witness. We further concluded that this issue had been raised far too late. RECONSIDERATION JUDGMENT
Conclusions
[1]The claimant’s applications dated 17, 18 and 27 December 2023 for reconsideration of the judgment sent to the parties on 3 December 2023 are refused.[2]Employment Judge Alliott apologises to the claimant for the delay in dealing with her application for reconsideration. The application was only referred to Employment Judge Alliott on 12 April 2024 due to delays in the administration.[3]Whilst the application for reconsideration was made 14 days after the judgment was sent to the parties, the claimant applied for an extension of time to provide reasons on 18 December 2023 and sent in reasons on 27 December 2023. Having considered the reasons for the delay, Employment Judge Alliott considers that it is in the interests of justice to extend time.[4]Employment Judge Alliott notes that the respondent has made submissions concerning the 17 and 18 December 2023 applications but has not responded to the reasons in the email of 27 December 2023.[5]The reasons for the application for reconsideration are contained in 12 paragraphs.[6]Paragraphs 1 and 2 are an explanation of why the claimant needed more time to compete her application for reconsideration.[7]Paragraph 5 is a complaint about the difficulties in obtaining evidence. All such issues should have been dealt with prior to the full merits hearing with applications to the tribunal as necessary.[8]Paragraphs 3, 4, 6, 7 and 8 advance new evidence that at the relevant time the respondent was recruiting three Band 7 candidates and not two as set out in the judgment. The extra candidate was Mr Jamie Regan and a “LinkedIn” message appears to confirm that he was told he had been successful on 14 February 2023. Mr Jamie Regan was apparently recruited as another Deputy Head of Residence.[9]As per the IDS Employment Law Handbook “Employment Tribunal Practice and Procedure” at 17.42: “Reconsideration of a judgment may be necessary in the interests of justice if there is new evidence that was not available to the tribunal at the time it made its judgment. The underlying principles to be applied by tribunals in such circumstances are the same as those which apply in civil litigation by virtue of the well-known case of Ladd v Marshall [1954] 3 All ER 745, CA. There, the Court of Appeal established that, in order to justify the reception of fresh evidence, it is necessary to show: That the evidence could not have been obtained with reasonable diligence for use at the original hearing. That the evidence is relevant and would probably have had an important influence on the hearing; and That the evidence is apparently credible.”[10]That said, the test under the rules is whether reconsideration is necessary in the interests of justice.[11]Further, as per the IDS handbook at 17.44: “Tribunals will remain mindful of the fact that it is not generally in the interests of justice that parties in litigation should be given a second bite of the cherry simply because they have failed as a result of oversight or a miscall in their litigation strategy to adduce all the evidence available in support of their cases at the original hearing.”[12]And at 17.45: “Furthermore, the Employment Tribunal will refuse an application for reconsideration on the basis of new evidence unless the new evidence is likely to have an important bearing on the result of the case. In Wileman v Minilec Engineering Ltd [1988] ICR 318, EAT, the EAT said the reason for this requirement is that, unless the new evidence is likely to influence the decision, then “a great deal of time will be taken up by sending cases back to an Employment Tribunal for no purpose”.[13]It is contended by the claimant that evidence that three Band 7 candidates were recruited in February 2020 and not two Band 7 candidates demonstrates that Ms Nicola Marfleet, Governor of HMP Woodhill, was deceitful and lacks credibility.[14]The LinkedIn messages submitted by the claimant are not the easiest to read as they have had the right hand section cut off. Nevertheless, it would appear that Mr Jamie Regan states that he had been successful at interview on 14 February 2023. Obviously enough that is the wrong year as the recruitment process that was relevant to this case was in February 2022. However, there appears to be part of Mr Regan’s CV which refers to him being a Band 7 Governor – Deputy Head of Residence from March 2022 until April 2023. As such, I am prepared to accept that Mr Regan may have put the wrong year and was recruited in February 2022 as a Band 7 grade.[15]In my judgment, the fact that there may have been three Band 7 grades recruited in February 2022 was discoverable by the claimant with reasonable diligence prior to the full merits hearing on 9 and 10 October 2023.[16]Furthermore, if it were established that three Band 7 grades were recruited in February 2022 rather than two, in my judgment, this is not likely to have an important bearing on the result of the case. The fact remains that the recruitment of new Band 7 grades allowed a new Band 7 grade to replace Mr Joe Lawson from the Offender Management Unit. Mr Joe Lawson was then able to fill the vacant band 7 position in the Separation Unit which meant that Mr Tangie, who was acting up as band 7, reverted to his substantive Band 5 role. The return of Mr Tangie to his substantive Band 5 role inevitably meant that the claimant, who was acting up in that Band 5 role, would have to revert to her substantive Band 4 position.[17]Further, in my judgment, this new evidence, if established, would not undermine the credibility of Ms Nicola Marfleet.[18]Paragraph 9 of the reasons alleges that documents submitted by the respondent had been altered or were inaccurate. There is no credible evidence for this being advanced and consequently, in my judgment, it is not in the interests to reconsider on this ground.[19]Paragraph 10 refers to a judgment of Employment Judge Clarke KC. This was available to the claimant prior to the full merits hearing on 9 and 10 October 2023 and could have been referred to by her during the course of the hearing had she wanted to do so. In my judgment, it is not in the interests of justice to reconsider the judgment on this ground.[20]Paragraph 11 refers to a document in the hearing bundle which the claimant could have referred to at the hearing as necessary. This is also a complaint that the case of Plaistow v Secretary of State for Justice, case number 3400502/2016, was not considered by the tribunal. The tribunal has already given its reasons for not doing so. In my judgment, it is not in the interests of justice for the judgment to be reconsidered on this ground.[21]For the aforementioned reasons, Employment Judge Alliott considers that there is no reasonable prospect of the original decision being varied or revoked and the contentions made in paragraph 12 are rejected.[22]Consequently, this application for reconsideration is refused.