J Pitcher v The Chancellor, Masters and Scholars of The University of Oxford: 3314953/2022

EMPLOYMENT TRIBUNALS

Case No 3314953/2022

Between

J PitcherClaimant

The Chancellor, Masters and Scholars of The University of OxfordRespondent

Before

Employment Judge Caiden

Mr D Cunnington (instructed by Counsel) for claimant

Ms J Danvers (instructed by Counsel) for respondent

Date 9 August 2023

JUDGMENT

ON STRIKE OUT The judgment of the Tribunal is that: - The Respondent’s application to strike the Claimant’s claim of victimisation, the only claim in the ET1, under rule 37(1)(a) on the grounds that it stands ‘no reasonable prospects of success and/or is vexatious’ is dismissed.

REASONS

[1]By an ET1 presented on the 13 December 2022 the Claimant complained of victimisation as defined by s.27(1) Equality Act 2010 (EqA) and contrary to 39(4)(d) EqA. In summary, the claim was that a decision by the Registrar of the Respondent to refuse to hear the grievance on 15 January 2016 about the Employer Justified Retirement Age (“EJRA”), communicated on 14 and 30 September 2022, amounted to a “detriment” that was because of him having either raised the grievance or brought prior Employment Tribunal proceedings under the EqA under case number 3323858/2016.

[2]By ET3 dated 11 February 2023, the Respondent sought to defend the claim. It accepted that both the grievance and prior Employment Tribunal claim were protected acts, but it denied that the reason for the refusal, the detriment, was because of these. Instead, it advanced that the reason for the refusal was simply that the prior Employment Tribunal claim had determined the very subject of the grievance, namely that the EJRA was not age discriminatory. In this response it applied for the claim to be struck out under rule 37(1)(a) on the basis it was vexatious and had no reasonable prospect of success, or in the alternative, should be subject to a deposit order a condition of its continuance. The Tribunal accordingly listed the present Preliminary Hearing to deal with this hearing to take place on 8 August 2023.

[3]At this Preliminary Hearing, the Claimant was represented by Mr Cunnington of Counsel and the Respondent by Ms Danvers of Counsel. The Tribunal in advance of this hearing as provided with: 3.1. a paginated bundle whose last page was 116 (so excluding the index it ran to 116 pages), and reference to page numbers in this document relate to this bundle; 3.2. a four-page witness statement from the Claimant; 3.3. judgments from the previous claim in the Employment Tribunal (case number 3323858/2016), Ewart v The Chancellor, Masters and Scholars of the University of Oxford (ET/3324911/2017), Field-Johson and ors v The Chancellor, Masters and Scholars of the University of Oxford (ET/3301882/2020 and ors), Pitcher and anor v he Chancellor, Masters and Scholars of the University of Oxford (

UKEAT/0083/20

). As an aside the Court of Appeal decision to refuse permission to appeal in the last of these cases was part of the main bundle; 3.4. a Skeleton Argument on behalf of the Claimant, drafted by Mugni IslamChoudhury of Counsel; 3.5. a Skeleton Argument on behalf of the Respondent, drafted by Ms Danvers.

[4]At the commencement of the Preliminary Hearing the following occurred: 4.1. the Tribunal noted that it practised as a barrister at the same Chambers as Ms Danvers and for a period of time, her instructing solicitor. It invited the parties if they wanted to make any observations on this. Neither party expressed concern and the Tribunal confirmed that it was content that it could proceed to determine the case independently and there was no need to recuse itself owing to these connections with the professionals before it; 4.2. the Tribunal noted counsel who authored the Skeleton Argument was not the same as that who was appearing before it. Mr Cunnington confirmed that he was adopted the prior submitted Skeleton Argument and had no additional Skeleton Argument. He made clear he would add to it in parts orally. The Tribunal was satisfied that both parties had adequate notice of the arguments and Ms Danvers was offered, and took the opportunity, to give a short reply to Mr Cunnington’s oral arguments; 4.3. the Tribunal drew the party’s attention to the case of A v Chief Constable of West Midlands Police (

UKEAT/0303/14

) and [21]-[23] and [30] in particular as it appeared from the pre-reading that the case may be of relevance to some of the arguments. Both counsel were sent a copy of the judgment and addressed the Tribunal on it during their oral submissions; 4.4. it was noted that the Skeleton Argument on behalf of the Claimant and the Claimant’s witness statement made no mention of means or ability to pay. Mr Cunnington took instructions and briefly addressed the Tribunal at the end of his oral arguments stating that in effect the Claimant earned £50,000 per year and in the event the test for a deposit order had been made out he was content to let the Tribunal fix the appropriate amount; 4.5. it was noted that there was no agreed list of issues on liability and the matter was discussed. For the purposes of the application, Ms Danvers confirmed that as the claim was being taken at its highest no issue was drawn that the refusal to hear the grievance could amount to a grievance, however that was an issue should the case progress (this was clarified at the end of the hearing). It was agreed that the sole issue at stake for the application was whether the refusal to hear the grievance by the Registrar was because of either of the accepted protected acts; 4.6. it was noted that the issue of directions should the matter proceed had been canvassed by the Claimant’s Skeleton Argument but not in any way at present by the Respondent. Counsel were asked to liaise during breaks in the hearing and whilst the Tribunal was considering its judgment in particular and they dutifully did so, producing in effect an agreed set of directions. The Tribunal expresses its thanks for their diligence in so doing and in fact extends this gratitude for their preparation and presentation of the case. Relevant background

[5]Much of the factual background was not in dispute. The Tribunal sets out below the relevant factual background necessary to determine the applications. It should not be taken however as binding any future Tribunal or preventing the parties raising arguments in such future situation.

[6]The Claimant was employed by St John’s College (“College”) as an Official Fellow and Tutor in English and as a Lecturer for the University of Oxford (“University”). It was stated in the Claimant’s witness statement as being a joint contract. The Tribunal pauses to note that during submissions the issue was explored as to the level of control or symbiosis between the two organisations (one of which is a Respondent to this claim). Ultimately this does not need to be resolved at this stage save that it is sufficient to record that there is a connection in the sense that the EJRA applies to both.

[7]EJRA set a mandatory retirement age of 67, which for the Claimant would occur on 30 September 2016. The Claimant believed this amounted to unjustifiable age discrimination and raised a grievance on 15 January 2016 (p.28), and following refusal to extend his service, also on raised a formal written grievance on 29 March 2016 (p.32). Additionally, he presented an Employment Tribunal claim under case number 3323858/2016 on 3 July 2016 (p.36). That ET1 also complained that the Claimant had been subject to “unjustified direct age discrimination by the Respondents in breach of the Equality Act 2010 by the Respondents' respective implementation and application of their forced retirement policies entitled [EJRA]” (p.48 [1]).

[8]It is common ground that the grievance was not dealt with internally following the Claimant commencing Tribunal litigation. In fact, the Claimant was the first of one of many cases that challenged the lawfulness of EJRA in Employment Tribunals.

[9]The Tribunal hearing under case number 3323858/2016 was lengthy. It ran from 13-15 and 17-23 August 2018, 27 September 2018, 17 December 2018; 21-25 January 2019, 25-26 March 2019 and also it is understood had a day in Chambers on 7 May 2019. On 16 May 2019 its judgment dismissing the claim was sent to the Claimant and Respondent.

[10]Whilst the case involving the Claimant had concluded another Tribunal case, which was equally lengthy, was commencing on 29 August 2019 (Ewart). On this occasion the EJRA was found to have been age discriminatory and a judgment setting this out was sent on 20 December 2019. That is the EJRA had not been shown to be a proportionate means of achieving the sought after legitimate aims.

[11]On 13 March 2023, a further Employment Tribunal case found the EJRA to amount to unlawful age discrimination (Field-Johson).

[12]It is worth recording also that appeals and cross-appeals in the earlier case under case number 3323858/2016 and Ewart were heard together at the EAT. The result was that all the first instance tribunal judgments were upheld, and permission to appeal to the Court of Appeal was refused.

[13]Drawing all this together: 13.1. The Claimant’s case is the only one thus far in which the EJRA has been found to be lawful, that is not amounting to direct age discrimination. That is a finding that is binding to this Claimant and not susceptible to further legal challenge; 13.2. The Ewart case and the multiple claimants in Field-Johnson succeeded in establishing that the EJRA was unlawful age discrimination, and these are all equally binding to those individuals and the Respondent, and no longer susceptible to further legal challenge.

[14]The Claimant stresses, and the Tribunal accepts, that he was not allowed to submit certain statistical evidence that was used in the earlier cases that were successful. This has been referred to as “HESA statistical data” or simply “HESA” before this Tribunal.

[15]Returning to the chronology of this case, with the Tribunal proceedings and appeals having ended, the Claimant wished to resume with the internal grievance. His witness statement asserts, and for present purposes is accepted, that on 24 February 2022, the College indicated that the grievance would now be progressed. However, in the event all matters were resolved between him and the College by a COT3.

[16]On 9 September 2022 in so far as material the Claimant indicated he wished to continue with the grievance in relation to the University. At p.109 it is stated: You will recall that I lodged a formal Grievance in respect of unlawful age discrimination in 2016 (copy enclosed) which the University agreed to postpone until conclusion of the Tribunal proceedings. As such, the University has yet to investigate formally my complaint that I have been subjected to unlawful discrimination….

[17]This was responded to by the Registrar of the Respondent in the following terms, p.109: Thank you for your email to me of 9 September 2022. I understand that your employment at the University terminated on 30 September 2016, by application of the University’s EJRA. I also understand that the concerns raised by you in your letter of 29 March 2016 were considered and decided upon by the Employment Tribunal, with the Employment Tribunal’s decision subsequently being upheld by the Employment Appeal Tribunal. It would not be appropriate for the University to reconsider matters that have already been determined through the courts. Therefore, no further action will be taken by the University in respect of your letter of 29 March 2016.

[18]The Claimant challenged that initial refusal on 21 September 2022, and was met with this reply p.113: Thank you for your email. The University will not reconsider matters that have already been determined through the courts, and no further action will be taken by the University in respect of your letter of 29 March 2016. You are not able to raise a new grievance under Statute XII, as you are no longer an employee of the University. Legal Principles

[19]The Tribunal had regard to the Skeleton Arguments which set out several legal principles. In truth there was not much, if any, dispute between the parties. Below the Tribunal sets out the key legal principles. It does not mention every case that was put before it, which for the avoidance of doubt it has considered. Victimisation

[20]Victimisation is defined by s.27(1) EqA and it is something to which s.136 EqA burden of proof provisions apply. In that regard, in a case such as this, where the protected act is established and the detriment (for the purposes of the application only) is accepted, s.136 EqA would apply to the ‘reason why’ question.

[21]In terms of ‘causation’, the because of element of s.27 EqA 21.1. in dealing with the issue of ‘causation’, that is whether it was ‘because of’ the alleged protected act, the approach taken by the House of Lords in Khan v Chief Constable of West Yorkshire

[2001] UKHL 48

;

[2001] IRLR 830

at [29] and [77] makes clear that the issue is whether in the mind of the alleged discriminator it was the ‘protected act’ that was the reason for the act (detriment) or not - in effect this is the simply ‘reason why’ question. In Penisula Business Services v Baker

[2017] IRLR 394

(EAT) at [70] confirmed the Khan approach, asking what consciously or subconsciously was the reason for the detriment applied to the EqA and it is not a ‘but for’ test; 21.2. in A v Chief Constable of West Midlands Police

UKEAT/0313/14

the EAT made some useful general observations to victimisation at [21]-[23] and [30]. It noted that the effect of the section is to put a claimant who commits a protected act in a “protective bubble”, it is protective provision and is not intended to confer a privilege for instance enabling them to require a particular outcome or speed at which the matter need be resolved. The EAT pointed out that it does not create a duty to act or expectation of action where that does not otherwise exist. It pointed out that in some cases, whilst context was highly significant “a failure to investigate a complaint will not of itself amount to victimisation” although it acknowledged in other circumstances it may be the case for example “if the particular nature of the complaint meant that it would not be discussed or dealt with in a way in which other complaints of a different nature would”. Strike out

[22]Rule 37 ET rules provides: (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) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).

[23]In terms of case law: 23.1. Anyanwu v South Bank Students' Union

[2001] IRLR 305

(HL) at [24] and [39] stands for the principle that although in general discrimination cases are fact sensitive and often not struck out for this reason, it is still possible for discrimination cases to be struck out on the grounds of having no reasonable prospect of success (ie striking out should be exercised with greater caution in the discrimination context); 23.2. Indeed, the point that Anyanwu does not provide a bar to strike out or fetter the Tribunal’s discretion has been repeatedly made in other cases: Jaffrey v Department of the Environment, Transport and the Regions

[2002] IRLR 688

(EAT) at [41], Malik v Plymouth Hospitals NHS Trust

UKEAT/0117/11/ZT

at [5], ABN AMRO Management Services Ltd v Hogben

UKEAT/0266/09/DM

at [7], Chandhok v Tirkey

[2015] ICR 527

(EAT) at [20] ; 23.3. Hogben at [13]-[15] makes the point that if a claim appears hopeless, and there is no concrete basis for supposing that cross-examination would improve its prospects, that it is not legitimate to allow it to proceed to trial in the hope that something might turn up in cross examination. This was repeated in Patel v Lloyds Pharmacy Ltd

UKEAT/0418/12/ZT

at [19]-[20]; 23.4. North Glamorgan NHS Trust v Ezsias

[2007] EWCA Civ 330

[2007] IRLR 603

at [25]-[27] made clear that(a) the test is whether a claim has a 'realistic' prospect of success which (consistent with the Civil Procedure Rules approach) requires prospects that are better than merely arguable (fanciful, false and imaginary prospects being discounted) and

(b) that disputed cases of facts are still susceptible to being struck out depending on the nature and scope of the factual dispute: 23.5. the principles of many of the above cases were summarised in Malik v Birmingham City Council

UKEAT/0027/19/BA

at [30]-[34] which the Tribunal had regard to. Deposit orders

[24]Rule 39 ET rules provides:(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.

[25]In terms of case law, the EAT in Van Rensburg v Royal Borough of Kingstonupon-Thames (

EAT/95/07

) at [23] and [26]-[27] held that the threshold for making a deposit order was lower than that of striking out a claim and that a Tribunal is not restricted to a consideration of purely legal issues but is entitled to have regard to the likelihood of the party being able to establish the facts essential to his case, and, in doing so, to reach a provisional view as to the credibility of the assertions being put forward. This was confirmed by Arthur v Hertfordshire Partnership University NHS Foundation Trust

UKEAT/0121/19/LA

which at [21]-[24] which also summarised the law and purpose of deposits to identifying at an early-stage claims with little prospects and to discourage the pursuit of them, without fixing sums that make access to justice difficult thereby striking out by the back door. Brief summary of party’s oral submissions

[26]The Tribunal carefully considered both parties Skeleton Arguments and will not set them out below. It will however briefly set out the main points developed in oral arguments.

[27]Ms Danvers made three broad points: 27.1. first, in the main on the law, Khan is the correct approach and that one can see that the words on the page of p.109 indicate the reason for not progressing was because of “the matters that have already been determined through the courts”. That, those words, is something that is distinct from the making of the grievance or the bringing of proceedings. It was the outcome and the Claimant’s approach, it was alleged, is to just apply an impermissible ‘but for’ approach and simply confusing the context with the correct legal test. She concluded this point with a useful thought experiment, positing that surely the Claimant would object if the Respondent carried out the grievance procedure after a Tribunal ruled in his favour to then dismiss the grievance. This demonstrating that it was just an outcome as opposed to the underlying grievance that was the ‘reason why’; 27.2. second, in terms of the facts, the points of distinction being made by the Claimant about ‘waivers’ and so on are not in fact factual disputes that are material. The point is that there was an outcome and that the attempt to challenge that by pointing to other different outcomes in Tribunals and the fact that the HESA was not considered by the Tribunal in the Claimant’s case changes nothing. There were other factual differences between the Claimant and the other cases, and in fact all the Claimant was doing in setting out questions that needed to be asked of the decision maker and its allegations that it was all about HESA and avoiding embarrassment, are bare assertions, with just a hope something will come in cross examination; 27.3. third, at the very least a deposit order should be made.

[28]Mr Cunnington made the following points: 28.1. the case law establishes the high bar for strike out in discrimination claims. This was akin to saying that something is fanciful or in law cannot succeed. As all the ingredients save causation were not made out; 28.2. the present case is not like the points being made in A v Chief Constable of West Midlands Police in terms of difficult case to succeed but is actually an example of the point made of avoiding the resolution because of embarrassment, so it is those paragraphs of A v Chief Constable of West Midlands Police that are pertinent; 28.3. following a question by Tribunal, he pointed to the following which meant that an inference may be drawn for a s.136 EqA burden to transfer to the Respondent (in argument he labelled these as eight points but there was some overlap and it appears in the main there are three points): 28.3.1. the Respondent departed from the prescribed statutory procedure it had, and it never sought to engage with it to explain what provisions allowed for it to depart from it. This is pointed out as being in contrast to the College; 28.3.2. additional evidence would form part of the grievance and had not been considered by the Tribunal hearings, so in effect the Registrar is being ‘self protective’; 28.3.3. continuing with the procedure could only have an adverse outcome. 28.4. No deposit order should be made.

[29]In reply to Mr Cunnington, Ms Danvers stated in so far as relevant (the only other point was a dispute in relation to the facts of Khan which Mr Cunnington clarified after Ms Danvers concluded her oral submissions): 29.1. the Claimant was putting a gloss on the strike out words; 29.2. the not following procedure point was not pleaded in the ET1 and the Tribunal should have regard to the case law that shows that failure to follow a procedure or act unreasonably is not by itself sufficient to meet stage one of the burden of proof (she gave Bahl v Law Society

[2003] IRLR 640

(EAT) as an example of such a case). Analysis and Conclusions

[30]The Tribunal will separate out its analysis by considering first the strike out application, and then the dealing with the deposit order application. Strike out application

[31]In relation to the strike out, whilst the application noted the “vexatious” phrase, or limb, this was not pursued as a separate feature in oral argument (by this the Tribunal means something separable from prospects that is the proceedings being made to inconvenience, harass, and using the Tribunal process for an something other than to pursue a claim). In essence the argument all centred around whether there were “no reasonable prospects of success”.

[32]The starting point is to acknowledge that the case has to be taken at its highest and that all elements of victimisation are established (or accepted as being established taking the case at its highest) save for causation. So, the issue is whether there is no reasonable prospect of a Tribunal concluding that the grievance or earlier claim was a reason (in the sense of being more than trivial) for the Registrar refusing to hear the grievance. Ms Danvers during the course of her argument when questioned by the Tribunal accepted that the causation bar is lower, it merely having to be more than trivial factor and not a dominant or principal reason.

[33]In this regard Mr Cunnington’s point that this all centres around the mind of the Registrar and there is a core dispute of fact has some force. As attractive as the point is by Ms Danvers that the Claimant is merely making a bare assertion and hoping something will come up in cross examination, the Tribunal rejects it. The answer it seems to the Tribunal is that the relative low causation bar is made out in this case as there is enough material that an inference could be drawn that it was the protected act that played some part for the refusal for the following reasons: 33.1. whilst A v Chief Constable of West Midlands Police seemingly suggests it is often a circular argument to say that the outcome (in this case refusal) was because of the raising of the very grievance that is not an absolute rule. In this case it is right to point out that this is a case where the very policy has been successfully challenged and so the grievance and earlier proceedings cannot be viewed in isolation and there may be a motivation to not deal with this grievance because of the embarrassment of the outcome; 33.2. building upon the above, there is a further unusual feature in the case as the very nature of justifying age discrimination is that the evidence and things change. It is not like an ordinary complaint of say an accusation that one person hit another, where an employer would have good grounds for not going behind such a conclusion. The grievance was being dealt with or asked to be dealt with at the end of 2022. The very things that may have made the EJRA justifiable in 2016 may well have changed. As it is an internal process, unlike the Tribunal, it is arguable, something with greater than no reasonable prospects of success that is, that an employer would be considering the changes when dealing with a grievance. It would seem artificial to say ‘your grievance relates to 2016 and EJRA is fine but plainly it is no longer fine but we will ignore this’; 33.3. the Respondent has statutory procedures and the failure to follow them is something unusual and that could lead to an inference being drawn. In reaching this conclusion, the Tribunal is not deciding it or falling into the type of error warned of by Bahl. There is nothing before it which shows that all have been treated or even others in this way and if there is evidence that one person seems to have been singled out, which is the Claimant’s case (taken at its highest) that can lead to the necessary inference (Lancashire see for example Kowalewska-Zietek v Lancashire Teaching Hospitals NHS Foundation Trust

UKEAT/0269/15

at [48]; 33.4. so, this case is built on more than a bare assertion or a hope that something may turn up in cross examination. Deposit order application

[34]Turning to the deposit order application, the Tribunal reminds itself that it is not the same test as that of striking out. It is a lower threshold that needs to be established.

[35]Notwithstanding the points made above leading to the strike out being refused, the Tribunal concludes that there are little reasonable prospects of success because the Claimant will fail to establish that the reason for refusing to hear his grievance was the grievance being a protected act or the bringing of Tribunal proceedings alleging discrimination. Looked at another way, the Tribunal concludes that the Respondent will demonstrate that its reason for refusing to hear the grievance alleging that the EJRA was age discriminatory was there had been the earlier determination that the EJRA was not age discriminatory in relation to this particular Claimant.

[36]Fundamentally this is because a tribunal would need to be convinced that it was because the complaint, the grievance, was one of victimisation as opposed to any other internal complaint that had been later determined by an Employment Tribunal, that the Respondent refused to progress it. If any complaint would have been treated the same, that is a tribunal has determined it so the Respondent will not conduct the same (or similar) exercise thus refusing to progress it, the victimisation case must fail. The cause could not be the protected act. The same is true if the protected act is just the bringing of tribunal proceedings; if other tribunal proceedings were brought and determined (but not ones within the EqA) leading to a refusal to progress the internal complaint it is the determination at tribunal level as opposed to proceedings being EqA claims that is the reason for the refusal (so not the protected act).

[37]The above was raised with Mr Cunnington during his oral arguments and he fairly put the point that there is no evidence of that nature before the Tribunal and that the argument was not raised by the Respondent in its submissions. However, in dealing with deposits a Tribunal has a greater ability to form provisional views and the Tribunal’s view is that its point is a reasonable reading of p.113 “will not consider matters that have already been determined by courts” (emphasis added). This is suggesting a general rule and approach, and the Claimant equally has not put forward anything to show the opposite – that is a court outcome that nonetheless less to a continuation of an internal grievance on the same subject matter. In reaching this conclusion the Tribunal is applying the points made in Van Rensburg: having regard to the likelihood of a party being able to establish the facts essential to their case, and, in doing so, to reaching a provisional view as to the credibility of the assertions being put forward. It seems entirely credible that an employer would not continue with an internal process when the matter had been determined by a Tribunal. The point raised that in fact there are distinctions and other cases where a Tribunal concluded the contrary does not sufficiently alter this: it is entirely credible that an employer will take a simple view of the Tribunal has determined this for this individual already and that is the end of the matter. In effect this is what Ms Danvers thought experiment, see paragraph 27.1 above was all about.

[38]So, to summarise, the necessary causation to succeed in the victimisation claim has more than no reasonable prospects of success being established but it can be properly classed as little reasonable prospect of success.

[39]In terms of the sum to order for the deposit, the Tribunal concludes £750 is appropriate. This is less than the maximum £1,000 sought and takes into account the fact that the Claimant did not do much to explain his means other than Mr Cunnington stating on instructions that his client earned £50,000 per annum. Accordingly, the sum of £750 should not impede access to justice but at the same time plainly serves to identify for someone of relatively sufficient means that he should consider strongly whether to continue with the claim. Employment Judge Caiden 9 August 2023