Ms G Ahir v St Swithun Wells Catholic Primary School and others: 3314016/2021

EMPLOYMENT TRIBUNALS

Case No 3314016/2021

Between

Ms G AhirClaimant

St Swithun Wells Catholic Primary School and othersRespondent

Before

Employment Judge George

Ms J Duane (instructed by counsel) for claimant

Mr T Cordrey (instructed by counsel) for respondent

Date 1 July 2024

JUDGMENT

The claimant was disabled by reason of migraines during the period relevant for the disability discrimination claim: 1 November 2022 to 31 July 2021. JUDGMENT Rule 52 of the Employment Tribunals Rules of Procedure 2013 The following complaints are dismissed following a withdrawal by the claimant: Constructive dismissal Redundancy payment Breach of contract Sexual orientation discrimination

[6]Discrimination on grounds of marriage or civil partnership Holiday pay Detriment on Trade Union grounds All claims of Indirect discrimination

[11]All claims against the second and third respondents apart from the claims of breach of confidence and breach of the Data Protection Act 2018.

[1]The claimant has applied for a reconsideration of the judgment sent to the parties on 30 September 2022 by which I found that the claimant was disabled within the meaning of s.6 of the Equality Act 2010 (hereafter the EQA) at the time the incidents which are the subject took place by reason of asthma only. This application is made under r.71 of the Employment Tribunal Rules of Procedure 2013. The application was attached to an email on 15 October 2022. However, later that day, the claimant sought to amplify it and/or substitute it and made further representations on 17 October 2022 in response to the respondent’s objections of the same date. In November 2022, the claimant added further information including about the reasons why the application was late.

[2]The application was made by email on 15 October 2022, one day outside the 14 day time limit. I grant an extension of time for making the application for a reconsideration to 15 October 2022 for the following reasons: 2.1. The extent of the delay was short: the email was sent at 01.41 in the early hours of the morning when it should have been sent before midnight on 14 October 2022. 2.2. The delay does not cause prejudice to the respondent. 2.3. The claimant has relied upon her “continuing ill health and serious medical conditions” as a reason for her delay. However, she does not explain why those meant that she was unable to present the application in time. She states that she can provide a doctor’s certificate as evidence of her ill health but does not do so. She should understand that, although on this occasion, I have accepted her reliance on her alleged ill health and serious medical conditions at face value, in general, if she relies upon a medical condition as reason for her delay or for an application that must be backed up with medical evidence. 2.4. The claimant was legally represented at the time of the preliminary hearing in public on 15 September 2022 but is now acting in person. She will have needed time to adjust to conducting litigation on her own behalf.

[3]I consider that there appears to be a reasonably satisfactory explanation for the delay and that in all the circumstances an extension of one day should be granted.

[4]Having considered the application under r.72(1), I consider that there is no reasonable prospect of the judgment being varied or revoked. The application for a reconsideration is rejected. 4.1. The procedure for an application for a reconsideration is set out in rule 72 of the Rules of Procedure 2013. It is a two stage process. If the employment judge who made the original judgement considers that there is no reasonable prospect of the original decision being varied or revoked the application shall be refused under rule 72(1) and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response and seeking the views of the parties on whether the application can be determined without a hearing. That notice may set out the Judge’s provisional views on the application. Unless the judge considers that a hearing is not necessary in the interests of justice, if the application is not rejected under rule 72(1) then the original decision shall be reconsidered by the tribunal who made the original decision. 4.2. The application seeks a reconsideration of my judgment that the claimant was disabled by reason of asthma and my rejection of the arguments that the claimant was disabled by any other condition at the period of time covered by the allegations. It had been agreed between the parties that the period relevant for the claim was 1 November 2020 to 31 July 2021 and that is the time period covered by the agreed List of Issues appended to the Record of Preliminary Hearing. 4.3. My judgment should not be taken as a finding that the claimant was not disabled by reason of asthma at an earlier period; is it simply that it is only relevant for the claim whether or not she was disabled from 1 November 2020 onwards. It may be that the claimant does not understand that I only made a judgment about the time period which it was necessary to consider because she appears to apply for a reconsideration of the judgment that was in her favour. There is no reasonable prospect of me varying my judgment that the claimant was disabled by reason of asthma because the finding is already in the claimant’s favour. The specific effects of asthma at the relevant period remain in issue, in particular in the reasonable adjustments claim. 4.4. It is important to note that a list of the issues to be decided by the Tribunal at final hearing in this matter was agreed between the representatives following amendment overnight between day 1 and day 2 of the preliminary hearing. I have now ruled that that list of issues is definitive and that was communicated to the parties on 1 December 2022. However, any reference to a health condition other than asthma as a grounds of direct disability discrimination should be disregarded. 4.5. The only disability discrimination claims are a claim of direct disability discrimination and a claim of breach of the duty to make reasonable adjustments where the claimant is alleged to have experienced a substantial disadvantage compared with people who are not disabled by reason of asthma. It does not appear that the claimant will achieve any significant forensic advantage if her application for reconsideration is successful unless it is argued that individuals were prejudiced against her by reason of joint pain and anxiety who were not also prejudiced against her by reason of asthma. 4.6. The application also appears to seek to reconsider my judgment that the claimant was disabled by reason of joint pain and anxiety. Oral reasons having been given at the preliminary hearing in public, they were not automatically provide and were not requested within 14 days of the written record of hearing being sent to the parties. At the time the claimant contended that she was disabled by reason of the following conditions: Asthma, migraines, joint pain and anxiety & depression. 4.7. The basis of the application appears to be: 4.7.1. That the conditions are fluctuating health conditions; 4.7.2. That the medical evidence had not been fully considered; 4.7.3. That additional medical evidence is now available and the claimant also indicated that more would become available when her DSAR had been complied with; 4.7.4. Action taken by her former legal advisers explained a lack of the relevant evidence in the file of documents for the preliminary hearing on 15 September 2022. 4.8. In oral evidence, the claimant herself confirmed that she was only seeking to rely on the alleged disabilities which were in her supplementary witness statement. There were 15 different impairments covered by the first impact statement. In those circumstances, her statement that the respondent has inaccurately stated that she reduced the number of conditions relied on from 15 to 5 is not understood. 4.9. The argument that the claimant was disabled by reason of migraines because they were likely to recur was relied on by counsel on behalf of the claimant at the preliminary hearing in public. This was clearly an argument that counsel was well aware of and deployed in relation to migraines. There is no explanation for any failure to use the same argument in relation to joint pain or anxiety had that been fairly arguable. 4.10. There was a joint file of documents for the preliminary hearing in public to which both parties had contributed and which was 617 pages long. It included the claimant’s impact statement and there was a supplementary impact statement which was also considered. To the extent that the claimant complains that there was a failure on the part of her then representatives to include some evidence in that bundle which was available to them and which was relevant and necessary to the determination of the preliminary issues, that is a matter between the claimant and those representatives. She was represented by apparently competent solicitors and counsel. Nothing she raises goes so far as to raise the prospect that she did not have a fair hearing on 15 September 2022. The claimant’s complaint that key documents were omitted or that her representatives failed to brief counsel adequately is at odds with the way that the hearing was conducted and, in any event, is a matter for her to take up with those representatives if she believes she has grounds for a complaints. 4.11. However, the claimant’s submission appears rather to be that she had not obtained medical evidence in preparation for that preliminary hearing. She seeks to rely on additional evidence. 4.12. Where a litigant applies for a reconsideration on the grounds that new evidence is available they must persuade the employment tribunal that the evidence could not have been obtained with reasonable diligence for use at the hearing, that the evidence would probably have had an important influence on the outcome of the case and that it is credible (Ladd v Marshall

[1954] 1 WLR 1489

[5]Taking into account all of the above and the arguments raised by the claimant, I conclude that there are no reasonable prospects of my judgment being varied or revoked and the application is dismissed. CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 Under the provisions of Rule 69, the reconsideration

[1]The claimant has applied for a reconsideration of the judgment sent to the parties on 30 September 2022 by which I found that the claimant was disabled within the meaning of s.6 of the Equality Act 2010 (hereafter the EQA) at the time the incidents which are the subject took place by reason of asthma MIGRAINES only. This application is made under r.71 of the Employment Tribunal Rules of Procedure 2013. The application was attached to an email on 15 October 2022 timed at 01.41. However, later that day, the claimant sought to amplify it and/or substitute it (email of 15 October 2022 timed at 09.41) and made further representations on 17 October 2022 in response to the respondent’s objections of the same date (email of 17 October 2022 timed at 22:37). On 1 November 2022 (email timed at 16.14), the claimant made further representations and added further information, including about the reasons why the application was late.

[2]The procedure for an application for a reconsideration is set out in rule 72 of the Rules of Procedure 2013. It is a two stage process. If the employment judge who made the original judgement considers that there is no reasonable prospect of the original decision being varied or revoked the application shall be refused under rule 72(1) and the Tribunal shall inform the parties of the refusal (the first stage). Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response and seeking the views of the parties on whether the application can be determined without a hearing. That notice may set out the Judge’s provisional views on the application. Unless the judge considers that a hearing is not necessary in the interests of justice, if the application is not rejected under rule 72(1) then the original decision shall be reconsidered by the tribunal who made the original decision (the second stage).

[3]The application was made by email on 15 October 2022, one day outside the 14 day time limit. I grant an extension of time for making the application for a reconsideration to 15 October 2022 for the following reasons: 3.1. The extent of the delay was short: the email was sent at 01.41 in the early hours of the morning when it should have been sent before midnight on 14 October 2022. 3.2. The delay does not cause prejudice to the respondent. 3.3. The claimant has relied upon her “continuing ill health and serious medical conditions” as a reason for her delay. However, she does not explain why those meant that she was unable to present the application in time. She states that she can provide a doctor’s certificate as evidence of her ill health but does not do so. She should understand that, although on this occasion, I have accepted her reliance on her alleged ill health and serious medical conditions at face value, in general, if she asserts that a medical condition is the reason for any delay in compliance with a rule or order or as the basis for an application that assertion must be backed up with medical evidence. 3.4. The claimant was legally represented at the time of the preliminary hearing in public on 15 September 2022 but is now acting in person. She will have needed time to adjust to conducting litigation on her own behalf.

[4]I consider that there appears to be a reasonably satisfactory explanation for the delay and that in all the circumstances an extension of one day should be granted.

[5]The procedural history of this claim has since become somewhat involved, in part due to an administrative error of my own. After the applications for reconsideration, the Tribunal received some correspondence from the parties about alleged compliance by the respondent with case management orders. On 22 November 2022 the respondent applied for orders striking out some or all of the claims and for deposit orders, including on the basis that some of the disability claims had no reasonable prospects of success because the claimant had been found not to be disabled by reason of the conditions relied on. They suggested that the open preliminary hearing to hear those application should take place after the reconsideration application had been determined.

[6]Unfortunately, when these application were referred to me, the reconsideration application and supporting evidence had not been attached to the file. Pending the full application being referred to me, I therefore directed that a 2 day preliminary hearing be listed with the intention that sufficient time would be available were the claimant’s application to pass the first stage of the reconsideration process for the judgment on the issue of disability to be reconsidered. In the letter by which this was communicated, there was an error in that it was recorded that the claimant had been found to be disabled by reason of asthma when in fact she had been found to be disabled by reason of migraines. That hearing was listed for 16 and 17 March 2023.

[7]There was then a delay in the reconsideration application being dealt with. The reconsideration judgment was sent to the parties on 2 March 2023 by which the application was rejected and the hearing was reduced to one day to consider the respondent’s applications for strike out and deposit orders only. That judgment repeated the error and therefore did not consider the arguments in favour of reconsidering the judgment in full. The claimant had pointed out the error in the letter of 1 December 2022 and also in the reconsideration judgment. When that correspondence came to my attention, I revoked the reconsideration judgment because it seemed to me to be just and equitable that it be taken again in light of the aforementioned error.

[8]In the meantime, the claimant had applied for a reconsideration of the reconsideration judgment, including on the basis that it had not considered the full arguments she relied on. That second reconsideration application is dealt with by a separate judgment. However, the claimant states in that second reconsideration application dated 15 March 2023 that it should be taken to replace the previous application.

[9]That seems to me to be an attempt by the claimant to take a further opportunity to amplify her arguments in support of reconsideration five months after the deadline by which an application for reconsideration should be made. I decline to consider matters referred to in the application and supporting documents supplied on 15 March 2023: the deadlines in the Employment Tribunal Rules of Procedure 2013 are there to ensure that challenges to orders are made in good time and that there is finality in decision making. It is quite possible, as this claimant has shown, for the key arguments why it is in the interests of justice for a judgment to be varied or revoked to be set out within 14 days of the date on which the order is sent despite any disadvantages caused by ill health or change in representation status. The interests of justice include fairness to both sides and it would not be fair to the respondent for the claimant to be permitted to replace the grounds for the reconsideration application essentially because an administrative error has meant that that application was not dealt with finally as quickly as it should have been.

[10]Having considered the application under r.72(1), I consider that there is no reasonable prospect of the judgment being varied or revoked. The application for a reconsideration is rejected. 10.1. A list of the issues to be decided by the Tribunal at final hearing in this matter was agreed between the representatives following amendment overnight between day 1 and day 2 of the preliminary hearing. At the preliminary hearing on 16 March 2023, the claimant pointed out an error in LOI para.z (see box 4.1 of her agenda for that hearing) and that has been corrected in the List of Issues appended to the Record of Preliminary Hearing on 16 March 2023 which is sent to the parties at the same time as this reconsideration judgment. Subject to the respondent’s application for strike out or deposit orders, that List of Issues is definitive. 10.2. The application seeks a reconsideration of my judgment that the claimant was disabled by reason of migraines and my rejection of the arguments that the claimant was disabled by any other condition at the period of time covered by the allegations. It had been agreed between the parties that the period relevant for the claim was 1 November 2020 to 31 July 2021 and that is the time period covered by the agreed List of Issues appended to the Record of Preliminary Hearing. 10.3. Therefore, the application seeks to reconsider my judgment that the claimant was not disabled by reason of asthma, joint pain and anxiety. Oral reasons having been given at the preliminary hearing in public, they were not automatically provide and were not requested within 14 days of the written record of hearing being sent to the parties. At the time the claimant contended that she was disabled by reason of the following conditions: Asthma, migraines, joint pain and anxiety & depression. 10.4. The basis of the application appears to be: 10.4.1. That the conditions are fluctuating health conditions; 10.4.2. That the medical evidence had not been fully considered; 10.4.3. That additional medical evidence is now available and the claimant also indicated that more would become available when her DSAR had been complied with; 10.4.4. That the lack of the relevant evidence in the file of documents for the preliminary hearing on 15 September 2022 is due to alleged failures by her then representatives adequately or competently to put forward the arguments/evidence to support her claim. 10.5. Where a litigant applies for a reconsideration on the grounds that new evidence is available they must persuade the employment tribunal that the evidence could not have been obtained with reasonable diligence for use at the hearing, that the evidence would probably have had an important influence on the outcome of the case and that it is credible (Ladd v Marshall

[1954] 1 WLR 1489

CA). As was said in Wileman v Minilec Engineering Ltd [1988] I.R.L.R. 144 EAT, the evidence must not only be relevant but it must be probable that it would have had an important influence on the case for tribunal hearings are designed to be speedy, informal and decisive. However, it is not necessary that the new evidence should be shown to be likely to be decisive. The question for the tribunal on reconsideration is “in the light of what we know about this case, has it been shown to us that the evidence is relevant and probative, and likely to have an important influence on the result of the case?” (paragraph 15 of Wileman v Minilec) 10.6. In oral evidence on 15 September 2022, the claimant herself confirmed that she was only seeking to rely on the alleged disabilities which were in her supplementary witness statement. There were 15 different impairments covered by the first impact statement. In those circumstances, her statement that the respondent has inaccurately stated that she reduced the number of conditions relied on from 15 to 5 is not understood. 10.7. The argument that the claimant was disabled by reason of migraines because they were likely to recur was relied on by counsel on behalf of the claimant at the preliminary hearing in public. This was clearly an argument that counsel was well aware of and deployed in relation to migraines. There is no explanation for any failure to use the same argument in relation to joint pain or anxiety had that been fairly arguable. What was relied on (see claimant’s skeleton argument para.21 and 22) was the argument that the combination of impairments with “different effects to different extents over periods of time which overlapped” meant that she could be regarded as disabled, that the focus needed to be on the deduced effects and that the length of medical treatment showed the effect of the conditions to have lasted 12 months or, in the case of anxiety to be likely to last 12 months as at the relevant period. 10.8. There was a joint file of documents for the preliminary hearing in public to which both parties had contributed and which was 617 pages long. It included the claimant’s impact statement and there was a supplementary impact statement which was also considered. That supplementary disability witness statement put forward the following information: 10.8.1. In relation to asthma, that the claimant was diagnosed as a child; she relied on more than 100 pages of medical evidence pre-dating her employment and gave evidence about the medication she was on and the alleged effects on her ability to carry out day to day activities were she not to be on the medication (see Supplementary Impact Statement para.4). 10.8.2. In relation to joint pain, her impact statement evidence was set out in paras.13 to 16 and it is clear that there was evidence before me that the claimant alleged that she had experienced joint pain since March 2016 (see para.13 of the supplementary impact statement) although she had most recently been suffering from it since December 2020 (para.15 of the supplementary impact statement). 10.8.3. She alleged that she had suffered from anxiety and depression since December 2020 (in other words from the same time as the start of the period relevant for the claim) and described alleged impacts of those conditions in paras.18 to 24. Her argument that she was disabled by reason of this condition therefore depended upon a finding that any substantial adverse impacts were likely to continue for more than 12 months from December 2020 onwards. 10.9. Comparing the details in that supplementary impact statement to the claimant’s reconsideration application, I do not consider that the evidence before me at the open preliminary hearing failed materially to set out her case on the impacts of these conditions either individually or cumulatively. 10.10. All relevant evidence to which I was taken at the preliminary hearing was taken into account. I only referred in my oral reasons to that evidence which it was necessary to cited in order to explain my judgment. In the absence of written reasons, I have reviewed my notes from which the oral judgment was given. 10.11. I was not persuaded by the evidence before me that I should infer from the mere fact that she was on maintenance medication for asthma that she would be likely to have the effects alleged in para.4 of her supplementary impact statement. I can see that I considered the medical evidence in the joint bundle and analysed the references within that evidence to focus on the extent to which she was using bronchodilators or reporting to her GP that she experienced symptoms. She gave evidence that the symptoms of asthma were well controlled before November/December 2020 and she started long term sick leave in May 2021 and that impacted on my judgment on whether the impacts were long term as that is defined in the EQA. The claimant made clear at the hearing in September 2022 that she experienced breathing difficulties, wheezing and coughing from December 2020 but still relied on the deduced effects to argue that the impact was both substantial and long term. I analysed medical evidence about the extent to which the medication had been used to reach the conclusion that she had not shown that the impact of asthma on her ability to carry out day to day activities was both substantial and long term. 10.12. Taking the above into account, the arguments put forward by the claimant now do not appear to be materially different to those which I considered at the hearing in September 2022 and therefore there is no reasonable prospect of the matters relied on in the reconsideration application causing me to vary or revoke that judgment in relation to asthma. 10.13. In relation to joint pain, my conclusion based upon my findings on the evidence before me was that the joint problems which she described flaring up in February 2021, which were a reason for absence from 8 February 2021 onwards, were described in the GP records as a new episode. That and the claimant’s evidence caused me to conclude that this was a separate matter to the meniscal tear and a separate matter to historic episodes. If she now alleges that the joint pain was a past disability as at November 2020 or that the impacts should be regarded as continuing because they were likely to recur, first, there is no satisfactory explanation for any failure to argue that previously and secondly, in reality the claimant seeks to overturn my finding, based on her oral evidence, that the historic joint pain had settled, and that she didn’t expect it to recur otherwise she would have declared it on her application form. This is not the purpose of a reconsideration application. 10.14. In relation to anxiety and depression, I was not satisfied that the claimant had shown that the impacts relied on were long term in that they could well last 12 months rather than that they were a reaction to adverse life events. There is nothing in the reconsideration application which is likely to cause me to vary that conclusion, if anything, the reverse. She may, in due course, argue that there were psychological effects of the alleged acts of the respondent and that compensation for any successful discrimination claims should take that into account but that does not affect my judgment on whether the claimant was disabled by reason of anxiety at the relevant time. 10.15. To the extent that the claimant complains that there was a failure on the part of her then representatives to include some evidence in that bundle which was available to them and which was relevant and necessary to the determination of the preliminary issues, that is a matter between the claimant and those representatives. She was represented by apparently competent solicitors and counsel. Nothing she raises goes so far as to raise the prospect that she did not have a fair hearing on 15 September 2022. The claimant’s complaint that key documents were omitted or that her representatives failed to brief counsel adequately is at odds with the way that the hearing was conducted and, in any event, is a matter for her to take up with those representatives if she believes she has grounds for a complaint. 10.16. There is no explanation put forward for any failure to obtain or adduce in evidence at the hearing on 15 September 2022 which, in all probability, would have been available had it been sought at the proper time. Indeed, a large quantity of documentary evidence was available. 10.17. In their correspondence of 16 November 2022 (timed at 10.02) the respondent sets out the preparation orders which the parties were working towards prior to the preliminary hearing. The claimant was represented between 24 February 2022 and 20 May 2022 and between 1 August 2022 until after the preliminary hearing in public on 15 & 16 September 2022. The preliminary hearing had been listed since March 2022. She was therefore represented during the period when there were deadlines by which medical evidence should be provided and when evidence gathering was taking place. There was ample opportunity for the claimant and/or her representatives to obtain medical documentation and I am not satisfied that any additional evidence could not have been obtained with reasonable diligence for use at the original hearing. 10.18. The claimant says that she was advised that there was sufficient in the medical evidence that was disclosed. Where a judgment has been made about what evidence to include and not to seek further evidence then it is not in accordance with the overriding objective of avoiding delay and ensuring that the parties are on an even footing to permit one party to seek to re-hear the preliminary issue by adducing evidence which could have been introduced at the original hearing. This does not cause injustice to the claimant – who has had the original opportunity to present her case. To permit the claimant to reopen the issue would potentially cause injustice to the respondent.

[11]Taking into account all of the above and the arguments raised by the claimant, I conclude that there are no reasonable prospects of my judgment being varied or revoked and the application is dismissed.

REASONS

There is no reasonable prospect of the original decision to reject her reconsideration application of 15 October 2023 or of the original judgment on disability (sent to the parties on 30 September 2022) being varied or revoked, because:

[1]This is the third application for reconsideration directed at the judgment sent to the parties on 30 September 2022 by which I found that the claimant was disabled by reason of migraines only. The procedural history is set out in the reconsideration judgment sent to the parties on 16 April 2023. I refer to it but do not repeat it.

[2]A party may make more than one application for reconsideration; nothing in the Employment Tribunals Rules of Procedure 2013 prohibits it and rule 72(1) specifically refers to the possibility. That provides “If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform he parties of the refusal.” (my emphasis)

[3]A previous incarnation of what is now the reconsideration provision was considered in Raybright TV Services Ltd v Smith [1973] I.C.R. 640 NIRC where it was held that a second application is permissible but that it would be only in the most exceptional circumstances that a second application would succeed after a first application had been properly refused. Such exceptional circumstances were present in that case.

[4]There was an error in paragraph 1 of the reconsideration judgment sent to the parties on 16 April 2023 in that, again, I referred to the original judgment as having found the claimant to be disabled by reason of asthma; in this I repeated the previous error. However, it is quite clear from paragraph 10.2 and 10.3 that I was fully aware that the judgment I was asked to reconsider was that which found the claimant to be disabled by reason of migraines and not by any other condition. In other words it is clear that I understood that I was being asked to reconsider my judgment that, in the claimant’s case at the relevant period, asthma was not a disabling condition (as well as and in combination with other health conditions). In those circumstances, the error in paragraph 1 can be corrected under rule 69 and a corrected judgment and certificate of correction are sent with this judgment.

[5]A disability discrimination claim is available to an individual who is disabled within the definition of s.6 of the Equality Act 2010 at the time of the acts complained of. The question of whether the impact on the individual of particular conditions was long term should be judged as at the time of the acts complained of; it is not a question of whether the claimant is disabled now or whether the adverse impact became substantial because of the acts of the employer and has since continued for 12 months. To some extent, the description of events by the claimant appears to focus on the continuing impact of the acts she complains of not on evidence which shows the impact had been long term before those acts or that a previous adverse impact was likely to recur.

[6]To the extent that the claimant argues that there has been a failure on the part of the Employment Tribunal to consider properly evidence which was before it at the hearing on 15 & 16 September 2022 then that is not a proper basis for an application for reconsideration – the claimant is seeking to appeal against a decision she disagrees with.

[7]As to the errors referred to by the claimant:a. The errors in describing the disabling condition have been corrected by the second reconsideration judgment and as described above.

b. An electronic file of documents was available to me at the hearing of 15-16 September 2022. The claimant was represented at that hearing and the electronic file contained evidence which had clearly been provided by the claimant as part of her disclosure. The claimant argues that this should not be described as a joint bundle, apparently on the basis that her then representatives had not made what she considers would have been sufficient efforts to include evidence in that electronic file which supported her case. The respondent and the Tribunal are entitled to presume that when a claimant is represented at a hearing and the representatives raise no issues about omission of documents then the electronic file for the hearing is complete. This would have been checked at the outset of the hearing. Any continued dissatisfaction by the claimant with the description of the file does not affect the substance of the judgment.

c. The claimant should direct her complaints about the conduct of previous advisers to those advisers.

d. The alleged failings of those advisers to request medical evidence was relied upon in the first reconsideration application which was dealt with by the judgment sent to the parties on 16 April 2023.

[8]The claimant refers to evidence received “after 15 October 2022 to March 2023” but does not pinpoint any specific evidence which she states would be likely to make a difference to the decision on disability and the only explanation for the previous non-availability of the evidence that she gives is the alleged failings of her previous advisers. None of it is evidence which did not previously exist and it could, in my view, have been obtained prior to the original hearing. It is not in the interests of justice – which include the interests of finality in litigation – for the claimant to be able to rely upon late acquired evidence now.

[9]In summary, the arguments raised by the claimant in the application dated 30 April 2023 are substantially the same as those raised in her application dated 15 October 2022 which has already been refused. There are no special reasons why this repeated application for a reconsideration should be entertained.

[1]At the preliminary hearing in public I had the benefit of the following documents:a. A two part electronic file: Part A ran to 999 pages (in the most recent iteration) and contained the documents set out in the index and Part B contains 4004 pages which is the claimant’s disclosure on the substantive issues;

b. The claimant’s statement responding to the application for deposit orders;

c. The claimant’s application and amendment application (in total 419 pages including a 4 page statement) to strike out the respondent’s applications dated 2 November 2022 – the claimant informed me that the first 4 pages probably gave me all the information I needed for today and the other pages were copies of documents she referred to;

d. Some recent correspondence between the parties and the Tribunal dated 15 June 2023;

e. An audio file and a video file which were also appear to be part of the disclosure relevant to the substantive issues rather than to the issues for this preliminary hearing. (they are described in para.36.a. and b. on Vol A: page 180) Applicable Law

[2]The Employment Tribunals (Rules of Procedure) 2013 Sch.1 include the following (so far as is relevant): “37.— Striking out(1) At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) ...

(2) A claim or response may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. … 39.— Deposit orders (1) Where at a preliminary hearing (under rule 53) the Tribunal considers that any specific allegation or argument in a claim or response has little reasonable prospect of success, it may make an order requiring a party (“the paying party”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument. (2) The Tribunal shall make reasonable enquiries into the paying party’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.

(3) The Tribunal’s reasons for making the deposit order shall be provided with the order and the paying party must be notified about the potential consequences of the order.

(4) If the paying party fails to pay the deposit by the date specified the specific allegation or argument to which the deposit order relates shall be struck out…..

(5) If the Tribunal at any stage following the making of a deposit order decides the specific allegation or argument against the paying party for substantially the reasons given in the deposit order— (a) the paying party shall be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 76, unless the contrary is shown; and (b) the deposit shall be paid to the other party (or, if there is more than one, to such other party or parties as the Tribunal orders), otherwise the deposit shall be refunded.

(6) If a deposit has been paid to a party under paragraph (5)(b) and a costs or preparation time order has been made against the paying party in favour of the party who received the deposit, the amount of the deposit shall count towards the settlement of that order.”

[3]The power to strike out a claim on the ground that it has no reasonable prospect of success comes from rule 37(1)(a) of the Employment Tribunal Rules of Procedure 2013. It is a power to be exercised sparingly, particularly where there are allegations of discrimination and victimisation.

[4]In the case of Anyanwu v South Bank University

[2001] IRLR 305

HL, the House of Lords emphasised that in discrimination claims the power should only be used in the plainest and most obvious of cases. It is generally not appropriate to strike out a claim where the central facts are in dispute because discrimination cases are so fact sensitive. The same point was made by the Court of Appeal in the protected disclosure case of Ezsias v N Glamorgan NHS Trust [2007] I.C.R. 1126 CA where Maurice Kay LJ said this at paragraph 29 “It seems to me that on any basis there is a crucial core of disputed facts in this case that is not susceptible to determination otherwise than by hearing and evaluating the evidence. It was an error of law for the employment tribunal to decide otherwise. In essence that is what Elias J held. I do not consider that he put an unwarranted gloss on the words “no reasonable prospect of success”. It would only be in an exceptional case that an application to an employment tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the claimant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation. The present case does not approach that level.”

[5]Furthermore, there is a public interest in ensuring that allegations of discrimination are heard and determined after appropriate investigation of the circumstances because of the great scourge that discrimination, whether on grounds of race or other protected characteristic, represents to society. It is relevant to bear in mind that s.136 of the Equality Act 2010 provides for a shifting burden of proof. Therefore at this preliminary stage the question is whether the claimant has no reasonable prospect of establishing the essential elements of her claim, taking into account the burden of proof in respect of each of those elements and bearing in mind the danger of reaching such a conclusion where the full evidence has not been heard and explored: see Underhill LJ in Ahir v British Airways Plc

[2017] EWCA Civ 1392

para.16.

[6]That said, where it is plain that a discrimination claim has no reasonable prospects of success (interpreting that high hurdle in a way that is generous to the claimant), then the tribunal does have and, in a plain and obvious case, may use the power to strike out the claim so that the respondent and the tribunal system are not required to spend any more resources on a claim which is bound to fail: Anyanwu para.39 per Lord Hope. Such an example is given in the quotation from Ezsias. Discussion and Conclusions

[7]The application was originally made by the respondent on 22 November 2022 (Vol A: 96) and Mr Selwood has followed that application quite closely, expanding upon the argument but still targeting the same specific elements of the claim.

[8]The claimant took me to a number of different documents in which she had put forward explanations about her claim. Having clarified with the parties which documents in particular they wished me to read and made clear that I would only be able to take into account the pages that I was specifically directed to, I took time to read and the hearing resumed at about 11.45 am.

[9]I determine the application following the arguments in the order set out in the letter dated 22 November 2022. The respondents first argued that a number of allegations were out of time and that a number of allegations (see the top of Vol A: page 98) should be struck out or made the subject of deposit orders on the basis that they are, on the face of them, out of time. They indicate that, based on the date on which the claim was presented and the dates of conciliation in this case on the face of it claims which date from before 29 April 2021, are potentially affected by this.

[10]The claimant argued that it would be wrong at the present stage to strike out any of those claims or to subject them to deposit orders, make them subject to a deposit order because she argues that there was a continuing act or continuing state of affairs under which discriminatory acts took place from time to time.

[11]As Mr Sellwood realistically argued, the applicable case law (analysed recently in E v X (

UKEAT/0079/20

)) means that the test at this preliminary stage is whether there is a reasonable prospect of the claimant establishing that the acts are so linked as to amount to an act continuing over a period such that time starts to run at the end of the period. It is not easy for a respondent to show that it is appropriate to strike out claims on the basis that there is no reasonable prospect that the Tribunal has jurisdiction because of time points. The Tribunal should be wary even before making specific allegations subject to deposit orders at this stage. Counsel argued that there was a clear break during the period that the claimant was on sick leave in around February and March 2021.

[12]That argument I consider to be effectively dealt with by reference to the agreed amended list of issues (or LOI as I shall refer to it) 1.ii. which is an allegation that in February and March 2021, the Headteacher demanded that the claimant return to work and attend meetings. This on the face of it includes allegations about conduct which is said to have taken place during the sickness absence. Indeed, Ms Ahir argues that she was contacted throughout the period of absence.

[13]It therefore does not seem to me to be possible to say that there is a bright line distinguishing the acts that are said to have taken place before the start of the sickness absence from those that took place after. The personnel involved throughout the alleged acts and the nature of the claimant’s case means that there is the potential for the acts to be linked as alleged. I do not conclude that there are no reasonable prospects of the acts being said to amount to a continuing act.

[14]I did consider separately whether the alleged links might be so weak particularly over that period, that if not no reasonable prospects, there were little reasonable prosects, of them being linked. However the claimant also argues, as is reflected in the list of issues, that it would be just and equitable to extend time. She refers in her response to particular matters which, in my view, make that a reasonable argument to run. First, she states that there was a delay in the provision of an appeal outcome; she refers to that in paragraph 7 of her response. Next, she relies upon her own health challenges at various points of time. It seems to me that it would be wrong to say at this preliminary stage that there are little reasonable prospects that if the claimant were to show that these acts were discriminatory they would not be found to be in time, taking into account not just the continuing act issue but also whether it would be just and equitable to extend time.

[15]I next consider the race discrimination allegations.

[16]The respondent essentially argues in respect of one particular allegation (LOI 1.g.), that the strength of the evidence in the case means that it is so unlikely that the reason for the claimant’s sickness entitlement being paid in the way that it was anything to do with race that I be confident enough to strike the allegation out. They say that with reference to an exchange of documents in the preliminary hearing file at Volume A: page 767.

[17]However, the claimant argues that there is a contradiction between the information she was provided by the Vice Chair of the Governors and by the Head Teacher and that this is likely to mean that the respondents have something to answer. I consider that, in those circumstances, it is not possible to say that there is no basis whatever for linking this alleged underpayment with race.

[18]So then the next allegation is in respect of LOI 1.i.. The allegation by the respondent there is that the complaint that the Head Teacher caused confusion and ambiguity through poor email communication is not one that has any likelihood of being made out as a detriment because the impact on the claimant cannot amount in law to less favourable treatment by the Head. The only thing she is said to have done is have poor email communication.

[19]The claimant, in her response, referred me to the emails in question which are at pages 1623 to 1631 of Volume B, and I have read those. Having done so, my view is that this is exactly the sort of area of factual dispute and nuance where, in the context of a claim which has a number of allegations that are going to go forward, it is not possible to be confident without making any evaluation of the merits of the case that there are no reasonable prospects of showing that these were detrimental matters amounting to less favourable treatment on grounds of race. When considering the rule 37 power, I have to take the claimant’s case at its highest.

[20]I move on then to LOI.1.m. and 1.q.. The argument there by the respondent is that in large measure the claimant there is complaining about breach of confidentiality and the link to race is not made out. It is argued that, the complaint of breach of confidentiality having been removed from the litigation by consent on the basis that it is not something that the tribunal has jurisdiction for, this is something of an oversight.

[21]The factual allegations are that the Head Teacher disclosed a private and confidential letter and another that the Assistant Head Teacher snatched the claimant’s phone and began recording herself and went through personal items on the claimant’s phone.

[22]When the claimant responded to these allegations she commented on inconsistent and what she argues to be, untrue information provided by the respondent about responsibility for an individual in HR putting an incorrect address on the system. That does not seem to be directed to these particular incidents at all.

[23]However, it is fair to say that were the claimant able to show that there had been an initial refusal on the part of the respondent to accept responsibility for a data breach despite clear evidence and then that response has shown to be inaccurate, there could well be something that calls for explanation. In a factually complex case, where there are other allegations against the same individuals, and at this early stage this is something on which I consider it right to give the claimant the benefit of the doubt and do not conclude there are no reasonable prospects of success.

[24]I can also take LOI. 1.r. and s. together. In respect of neither of Rule 37 nor Rule 39 do I think the test is met here. I am not going to strike these allegations out and I am not going to make deposit orders. The claimant links the comments that are made and are described in LOI.1.r. and s. to a perception about the norms of marital status of a person with children who is of her sex and her ethnic background, namely Indian. She also argues that the comments were influenced by religion in the sense of the religious ethos of the school. I do query what the claimant is describing is in fact to do with her religion or to do with the religion of the questioner. However, it is not obviously unarguable that there is some connection with the claimant’s race in the sense of ethnic background. If those words are shown to have been said, then they themselves call for explanation and I am of the view that those allegations have reasonable prospect of success.

[25]The final allegation of direct race discrimination that is said there to have no or little reasonable prospect of success is LOI.1.cc., that of having to work in rooms where the windows and doors were open in November and December without heating or warm clothing. In essence, the claimant’s allegation is that in a number of respects her health and wellbeing was not prioritised compared with the white Teaching Assistants. Although the conditions that are triggered by cold have been found not to be disabilities (namely asthma and joint pain), it does not follow from that that this could not be considered as less favourable treatment on grounds of some other protected characteristic. In the context of the thrust of her complaint as set out in a number of the other allegations, this seems to me to be sufficiently similar to the other allegations that it should go forward as part of the whole.

[26]I turn to the arguments that two particular elements of the direct disability discrimination complaint should be struck out or the subject of deposit orders: Those are based on LOI.1.d. and cc.

[27]The claimant here appears to me to have confused the conditions which meant that the acts complained of were disadvantageous to her with any basis for asserting the respondent acted on grounds of the only one of those conditions that causes her to be protected as a disabled person under the Equality Act 2010, namely migraine. The basis that she put forward in argument of a potential inference of unlawful grounds is an alleged failure to follow their own risk assessment. There is some basis, then, for an assertion that, in addition to being direct race discrimination, those respondent were motivated by the claimant being a person who gets migraines and I do not accept that there are no reasonable prospects of success.

[28]I agree with the respondent’s argument that the allegation of failure to make reasonable adjustments that was in the agreed amended list of issues was predicated solely on the claimant being disabled by reason of asthma and joint pain. It follows from my judgment that the claimant is not disabled by reason of those conditions that that particular head of claim should be struck out as having no reasonable prospects of success.

[29]So far as the victimisation claim is concerned, following discussion I think the claimant understood that there were a number of allegations which happened before the date on which she first complained about discrimination and therefore could not have happened because of her complaint of discrimination. Those allegations may proceed as discrimination complaints (subject to any other ruling by this judgment).

[30]That does not mean that all of the list of issue numbers that are listed in the application will be struck out because at least one of them spans a period of time that straddles 5 February 2021. Any that are similarly affected will continue, but only in so far as the claimant relies on conduct that postdates 5 February 2021.