Miss M Puar v Duncan Lewis Solicitors Ltd: 3323750/2017

EMPLOYMENT TRIBUNALS

Case No 3323750/2017

Between

Miss M PuarClaimant

Duncan Lewis Solicitors LtdRespondent

Before

Employment Judge Bedeau

In person for claimant

Mr O Isaacs (instructed by Counsel) for respondent

Date 10 May 2022

JUDGMENT

[1]The order dated 18 August 2017, dismissing the claims is hereby set aside. _____________________________ Employment Judge Bedeau Date: ……2 March 2018. Sent to the parties on: 7 March 2018 ............................................................ For the Tribunal Office Note Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision.

[2]Case Number: 3323750/2017 ph outcome re case management 1 July 2014 version EMPLOYMENT TRIBUNALS Claimant Respondent Miss M Puar v Duncan Lewis Solicitors Ltd PRELIMINARY HEARING Heard at: Watford On: 9 February 2018 Before:

REASONS

JUDGMENT having been sent to the parties on 7 March 2018 and the parties having requested written reasons in accordance with rule 62(3) Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, reasons are hereby given below:

Conclusion

[1]The claimant applied for the strike out order issued on 18 August 2017, to be set aside and that she be allowed to pursue her claims to a final hearing. The application was opposed by the respondent.

The issues

[2]The issues I have to consider are:2.1 what was or were the reasons for the claimant’s failure to comply with the tribunal’s order and or Unless Order?

2.2 The seriousness of the default?

2.3 The prejudice to the other party; and Case Number: 3323750/2017 ph outcome re case management 2 July 2014 version

2.4 whether a fair trial is still possible?

The evidence

[3]I heard evidence from the claimant. No oral evidence was given on behalf of the respondent. In addition, the parties adduced a joint bundle of documents.

[4]The presented a very detailed witness statement, essentially focussing on the merits of her case. She was cross-examined by Mr Isaacs, counsel on behalf of the respondent. Questions were also put to her by me. In the main I accepted the chronology set out in Mr Isaacs’ skeleton argument.

Findings of fact

[5]The respondent is a firm of solicitors with its main office in Harrow. It also has an office in Stuart Street, Luton.

[6]The claimant commenced employment with the respondent on 3 August 16, as a caseworker on a probationary contract for the first six months and was based at the Luton office.

[7]On the 8 December 2016, her employment was terminated, according to the respondent, on grounds of performance.

[8]On 2 March 2017, she presented her claim form alleging that she had been unfairly and wrongfully dismissed and had been discriminated against because of race and religion or belief. In the response presented to the tribunal on the 2017, the respondent denies the claims and asserts that the claimant failed to reach the standards required of her during her probationary period, consequently, her employment was terminated. In addition, her claims were inadequately pleaded.

[9]On 16 March 2017, the case was listed for a preliminary hearing, in private, to consider the claims, issues and to give case management orders. The claimant was duly notified by the tribunal of the hearing as notice of it was sent to her address. At all material times her email address was manjeet.puar.advocate@gmail.com.

[10]On 31 May 2017, she emailed the tribunal stating that she was due to start employment on the 1 June 2017 working in Cambridgeshire and asked the tribunal whether it was possible for the hearing to be put back to the afternoon or re-listed, to allow her to be inducted in her new job in the morning. She stated that it had taken her six months to find employment following her dismissal and apologised for any inconvenience caused. Her application was copied to the respondent. Case Number: 3323750/2017 ph outcome re case management 3 July 2014 version

[11]The respondent objected, and the application was refused by Employment Judge Small on the same day. The parties were informed that the hearing would go ahead as listed. The tribunal wrote to the claimant using her gmail account. The claimant said that she only became aware to the decision on 1 June 2017.

[12]At the hearing on 1 June, EJ Skehan ordered that the case be re-listed for a further preliminary hearing on 21 August 2017 with a time estimate of 3 hours; the claimant to provide further information in respect of her claims within 14 days from receipt of the order; and that the respondent’s costs application for the aborted hearing be considered on 21 August.

[13]A copy of the case management orders was sent to the parties on 5 July 2017. The claimant said that she did not receive it until 18 August 2017.

[14]On 4 August 2017, on notice to the claimant, the respondent applied for the claims to be struck out for non-compliance with the orders, alternatively, and Unless Order. On 14 August an Unless Order was issued and sent to the parties. A further copy of the case management orders of 1 June 2017, was sent to the parties by the tribunal. The Unless Order required the claimant to comply with the case management orders by 17 August 2017 or the claims would be struck out without further order. There was no compliance because the claimant asserted that she was not aware of the order. On 18 August 2017, the parties were informed by the tribunal that the claims were struck out for non-compliance with the Unless Order.

[15]The claimant completed the legal practice course and stated that she was aware of where to search for legal information. She communicated using her gmail email account. By 31 May 2017, she was chasing the respondent for references as she had registered with a firm of recruitment consultants in January 2017. She had a telephone interview with the consultants and was told that she was due to start her new job on 1 June 2017 but said to them that she was not available to start on that day. She was, however, told that her induction would be in the morning on 1 June. She did not ask whether her induction could be on 2 June. She wrote to the tribunal on 31 May requesting that the hearing be put back to the afternoon. It was only on 1 June she was told by the tribunal that her request had been refused.

[16]On 3 July 2017, she called the tribunal but did not ask for a copy of the case management orders. From 28 July to 18 August 2017, she said that she did not log into her email account because she was working, and her mobile phone had “crashed”. She replaced it with another one, but it was not a smart phone. She acquired a new smart phone in September 2017 but did not set up her email accounts on it.

[17]When she logged into her email account on 18 August 2017, she read the case management orders, the Unless Order and the Strike Out Order.

[18]She said with her new job, having to move address and in the process, being busy packing up her belongings, compounded by the problems with her Case Number: 3323750/2017 ph outcome re case management 4 July 2014 version computer and mobile phone, she was unaware of the orders issued. She did not comply with the order to provide further information because her focus of attention was on seeking relief from sanction, that is, to get the strike our order set aside. She also said that she suffers from short term memory loss. Submissions

[19]I considered the submissions by Mr Isaacs and the claimant. I do not propose to repeat their submissions herein having regard to rule 62(5) Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.

The law

[20]Under rule 38(2), “A party whose claim or response has been dismissed, in whole or in part, as a result of such an order may apply to the Tribunal in writing, within 14 days of the date that the notice was sent, to have the order set aside on the basis that it is in the interests of justice to do so. Unless the application includes a request for a hearing, the Tribunal may determine it on the basis of written representations.”

[21]The factors I have to take into account are: the reasons for the default; the seriousness of the default; the prejudice to the other party; and whether a fair trial remains possible, Thind v Salvesen Logistics Ltd UKEAT0487/09, Hylton v Royal Mail Group Ltd UKEAT0369/14.

Conclusion

[22]Dealing with those matters in turn, the reason for the default was that the claimant said that she did not receive the Unless Order, the Strike Out Order and Case Management Orders until 18 August 2017. In relation to whether she received these documents in the post, she said that she moving to a new address and was in the process of packing up her possessions for the move. I did not consider these as good reasons for the default and do entertain a degree of scepticism as she told me that both means of communicating information from the tribunal to her failed, namely email account postal address. She studied law and should be familiar with litigation. It was up to her to prosecute her case before a tribunal and that means complying with the orders made. If that was the only factor I would have no hesitation in rejecting her application.

[23]I also have to consider the seriousness of the default. She did not comply with the case management order that she should serve further information clarifying her claims. She told me, and I was prepared to accept her account that she was focusing on this hearing to set aside the Strike Out Order and did not believe she had to comply with the Case Management Orders made on 1 June 2017 by Employment Judge Skehan which were promulgated to the parties on 5 July 2017.

[24]The prejudice to the respondent. I accept that the respondent does not have the full picture of the claimant’s claims and how she put her case against it, but it engaged in a detailed internal process in addressing the claimant’s performance and conduct; the decision to terminate her probation; and the appeal process. Case Number: 3323750/2017 ph outcome re case management 5 July 2014 version There are documents documenting the steps taken which are likely to act as aide memoirs to any potential witnesses it may call. There is the inevitable delay in having to wait for the final hearing. Although I do accept that the respondent will suffer some prejudice, I am of the view that the prejudice can be overcome.

[25]Were I to reject the claimant’s application the reality is that she will not have any recourse against the respondent in relation to her claims.

[26]Is a fair trial possible? Mr Isaacs takes a neutral position in respect of this. I have come to the conclusion that a fair trial is possible. The claimant can give her account of events, although I am told, which is acknowledged, that she suffers from short-term memory loss. She has, however, provided a very detailed witness statement in support of her case and according to Mr Isaacs she has added to that which may involve, in due course, an application to amend.

[27]Balancing as I do, all those factors, I have and I must say, quite candidly and with some reluctance, fall on the side of the claimant. I will set aside the judgment and allow the claimant to proceed with her claims against the respondent. __________________________ Employment Judge Bedeau 11 October 2018……………….. Sent to the parties on: 19 October 2018.………………. For the Tribunal: …………………………………….. Case Number: 3323750/2017 1 EMPLOYMENT TRIBUNALS Claimant Respondent Miss Manjeet Puar v Duncan Lewis Solicitors Limited PRELIMINARY HEARING REMITTED BY THE EMPLOYMENT APPEAL TRIBUNAL Heard at: Watford On: 16 January 2020 Before: Employment Judge Bedeau Appearances For the Claimant: In person For the Respondent: Mr Oliver Isaacs, Counsel

[1]At the preliminary hearing on 9 February 2018, one of the issues I had to hear and determine was the claimant’s application to set aside the strike-out order issued on 18 August 2017. After hearing evidence and submissions, I set aside the order, judgment was sent to the parties on 7 March 2018. Following a request by the respondent, written reasons were sent to the parties on 19 October 2018.

[2]The respondent successfully appealed my judgment before Mr Justice Poole on 19 November 2019 and the case was remitted to me to consider the claimant’s application afresh, but I should not take into account the claimant’s amended particulars served on 22 February 2018, paragraph 47. Case Number: 3323750/2017 2 Evidence

Preliminary

[3]I heard evidence from the claimant. Unlike at the previous hearing, the respondent produced a bundle of documents comprising of 176 pages. References will be made to the documents as numbered in the bundle. Findings of fact

[4]The respondent is a firm of solicitors. It employs approximately 500 people and 200 consultants across 14 offices in the United Kingdom. Its main office is in Harrow.

[5]The claimant commenced her employment with the respondent on 3 August 2016, as a caseworker and was the subject of a six months’ probationary period. She worked at the respondent’s Luton office. Her employment was terminated on 8 December 2016 within the probationary period, for reasons to do with her performance and conduct.

[6]In her claim form, presented to the tribunal on 2 March 2017, she claims wrongful dismissal, discrimination because of race, religion or belief, and unfair dismissal. At a preliminary hearing held on 1 June 2017, before Employment Judge Skehan, although the claimant was not present, she acknowledged, in writing, that the tribunal did not have jurisdiction to hear and determine her unfair dismissal claim as she did not have two years, qualifying period of service. Accordingly, that claim was dismissed upon withdrawal.

[7]Although the claimant told me that she has lodged an appeal against the EAT judgment in the Court of Appeal, no date has been fixed to hear her case. She initially asked for this hearing to be adjourned pending the outcome of her appeal, however, as this case is already nearly three years old, she was content for it to proceed and to give evidence.

[8]She has six years’ experience in civil and five years in family litigation. She told me that she also worked for five years in criminal law, and knows where to look for legal information and advice. In her claim form she stated that her e-mail address is manjeetpuar.advocate@gmail.com. She accepted in cross-examination, that she could access her g-mail account using a web browser.

[9]As already stated, the case was listed for a preliminary hearing in private on 1 June 2017. On 31 May 2017, the claimant e-mailed the tribunal using her g-mail account stating the following: “Dear clerks to the tribunal I have been offered a new role working in Cambridgeshire. I made them aware at interview stage and yesterday that I am not available on 1 June 2017. They have however, just telephoned me to tell me that I must start the role tomorrow as the inductions are taking place tomorrow and Friday. Case Number: 3323750/2017 3 I have asked that I be allowed to attend part of the induction and leave at 1pm to attend Watford at 2pm. However, the drive will be from Huntingdon to Watford and I am not sure if I will be able to attend the hearing on time. I am waiting for the employers to contact me to confirm that I can attend part of the day for the induction. I therefore request the tribunal either push the hearing back to 3pm or list it for another day. It has taken me nearly six months to secure employment after dismissal, I do not want to risk losing this job. I would be very grateful if the court would assist me on this point. I apologise for any inconvenience caused to the tribunal and the respondent. I have copied the respondent into this e-mail and will address them in a separate e-mail. I am grateful to the tribunal to hear my application at this hearing. I have documents to file with the court which I will do so today.” (page 95 of the bundle)

[10]She emailed the tribunal again at 17.34 that evening stating that she would be starting her induction in her new job at 9.30am the following day. Further, as a litigant in person she would need legal representation. (page 96)

[11]She said in evidence that her new job had already been delayed by a week and she was told by the recruitment agency, Venn Group, on 31 May 2017, that if she did not attend her induction due to take place on 1 June 2017, she would lose the position. She did not, however, tell the agency that she had an Employment Tribunal hearing on 1 June. She was sent an itinerary for her first day, 1 June 2017, from 9am to 5pm. (page 97)

[12]She said that the Department for Work and Pensions would have penalised her if she did not take up the post. When I looked at the DWP documents sent to her in relation to Universal Credit, it states: “If without good reason, I am not available as described, my Universal Credit payments will be cut by £10.40 per day for up to 91 days.”

[13]She could have informed DWP of her Employment Tribunal hearing on 1 June 2017 at 2pm, to avoid a cut in her Universal Credit payment. In my view, attending an Employment Tribunal or a Court hearing provides a “good reason” for not attending work on a particular day.

[14]She repeated her request for a postponement of the hearing as she was due to her start her new job. The respondent’s representatives objected to the application on three bases, namely the notice of hearing was sent on 16 March 2017, enough time for the claimant to make the necessary alternative arrangements; counsel’s fees had already been incurred; and the claimant had not given a sufficient reason why she would be unable to attend the hearing. (page 99) Case Number: 3323750/2017 4

[15]At 11:43 on 1 June 2017, the tribunal informed the parties, by email, that the hearing would go ahead on that day in the afternoon at 2pm. The tribunal communicated with the claimant via her g-mail account. (page 100)

[16]The claimant told me that she was aware that she had correspondence from the Employment Tribunal in relation to her postponement application. She said in her witness statement, paragraph 14, that she had called the tribunal at least 30 times in the morning of the hearing stating that she was unable to attend but had been informed that the Judge had ordered all parties to attend. She later checked her e-mails and sent a screen shot to the tribunal, evidencing the times she called.

[17]The e-mail from the tribunal on 1 June at 11:43, in the morning, clearly stated that the hearing would proceed. The claimant said that she did not believe that at the time there was anything wrong with her g-mail account.

[18]The hearing went ahead as listed on 1 June at 2pm before Employment Judge Skehan. The claimant did not attend, nor was she represented. Mr Isaacs, of counsel, attended. As already stated, it became apparent during the hearing that the claimant was not bringing an unfair dismissal claim and it was dismissed upon her withdrawal. The Judge set out the respondent’s understanding of the claimant’s claims being wrongful dismissal; race and religious discrimination, the claimant alleged that she was treated less favourably because she is a Sikh, and a possible victimisation claim.

[19]The claimant was ordered, within 14 days from receipt of the order, to provide to the respondent and to the tribunal, an amended document setting out particulars of each and every claim; the date of the allegation; what was said or done or the gist of what was said or done; who was present; identifying where that claim is contained in the original claim form; and to specify the nature of each allegation, ie direct discrimination on the grounds of race, direct discrimination on the grounds of religion or victimisation.

[20]The respondent was given leave to amend its response 14 days following receipt of the claimant’s further information. The hearing was relisted for 21 August 2017, with a time estimate of half a day and the claimant was ordered to notify the tribunal and the respondent if she was unable to attend the hearing.

[21]At the hearing the respondent stated its intention to pursue an application for costs against the claimant because of her non-attendance and that it should be considered at the re-listed hearing. It was ordered to provide a schedule of its costs within 14 days from the date of receipt of the case management orders. (page 41 to 43)

[22]On 13 June 2017, Mr Dominic Coyle, legal advisor on behalf of the respondent, wrote to the tribunal and copied in the claimant. He stated: Case Number: 3323750/2017 5 “We write further to the preliminary hearing held on 1 June 2017 and the order of the tribunal to provide details of the respondent’s costs thrown away. We can inform the tribunal that the respondent’s costs thrown away for attendance at the hearing are in the sum of £750 only, representing counsel’s fees. We have attached counsel’s fee note for his attendance. We have copied the claimant into this e-mail.” (page 102)

[23]The claimant acknowledged that she had seen Mr Coyle’s e-mail. She e-mailed the tribunal on 25 June 2017, stating that she had not received a copy of EJ Skehan’s orders.

[24]The claimant said in evidence that during this time, in late June and following, she had limited access to her e-mails and that her mobile phone had crashed. She could access her g-mail account through her laptop, and had use of another phone. She did not tell the tribunal, at the time, that she could be contacted in other ways.

[25]On 5 July 2017, the tribunal sent out to the parties, the case management orders made by EJ Skehan. In the claimant’s case, it was sent to her g-mail account, but she said that she could not remember receiving orders, either by post or by e-mail.

[26]On 28 July 2017, she e-mailed Mr Coyle about some interaction she had with a member of staff against whom she alleged bullying. The e-mail was sent on her g-mail account. (pages 105 to 106)

[27]She told me that by 5 July 2017, she knew there had been orders made by EJ Skehan but not the content. In her e-mail dated 28 July 2017, to Mr Coyle, she did not ask him about the Judge’s orders. She said that Mr Coyle did not inform her about the outcome of the hearing or about the orders. She would normally leave home at about 6:30 in the morning and it was not until September 2017 when she got a new mobile phone and did not set up her g-mail account on it. By then her case had been struck out.

[28]She admitted that she did not make any further attempts to find out more about the Judge’s orders because she had been unemployed for six months and was more interested in retaining her new job. Between 25 June to 18 August 2017, she could not remember whether she had accessed her g-mail account after 28 July 2017.

[29]On 4 August 2017, Mr Coyle e-mailed the tribunal and copied in the claimant with reference to the case management orders, in particular, that the claimant should provide to the tribunal and to the respondent, an amended document setting out details of every claim she wished to pursue, by not later than 19 July 2017. He confirmed that he had not receive correspondence from her relating to her claims as amended. He asserted that she failed to comply with the tribunal’s orders; was not actively pursuing her claim; and that her conduct amounted to unreasonable behaviour. Accordingly, her claims be struck out. Case Number: 3323750/2017 6 Alternatively, an unless order be issued for the provision of the further information within a further seven days or her claims be struck-out. (107)

[30]The claimant said that she could not recall receiving Mr Coyle’s e-mail. She acknowledged that the tribunal had sent her case management summary and orders, but she did not receive them, nor did she receive the tribunal’s later e-mail attaching the orders dated 14 August 2017. (108 to 110)

[31]On 14 August 2017, Employment Judge Manley issued an unless order in the following terms: “The claimant is to comply with tribunal orders sent to the parties on 5 July 2017 (copy enclosed) by 17 August 2017 or the claim will be struck-out without further order” (45)

[32]It was sent by e-mail as an attachment by the tribunal on 14 August 2017 at 13:37. The sender of the documents stated that he had omitted the document in the original e-mail and apologised for the confusion caused. (44)

[33]On 18 August 2017 at 11.33, the tribunal e-mailed Mr Coyle and the claimant using her g-mail account, a document entitled, “Confirmation of dismissal of claim”. This stated: “Further to the unless order sent to the parties on 14 August 2017, which was not complied with by 17 August 2017, the claim has been dismissed under rule 38. The hearing listed on 21 August 2017 has been cancelled”. (Pages 47 to 48)

[34]On 18 August 2017, at 12:08, the claimant wrote to the tribunal following her receipt of the letter dismissing her claims. She stated that she had not received case management orders following the hearing on 1 June 2017 and had written to the tribunal on 25 June 2017 asking that the orders be forwarded to her, but they were not, and the respondent did not inform her about the orders. She stated that on 3 July 2017, she called the tribunal 13 times to find out what was happening but did not get through until 4:50pm and was neither told that the matter had gone part heard nor about the orders made. The information she was given was that the hearing was adjourned until 21 August 2017 and the respondent’s cost application. She stated that she had only seen the respondent’s strike-out application and the unless order on 18 August 2017. She asked that the strike out order be set aside. She maintained that she was not aware of the orders made by EJ Skehan. (page 111)

[35]Later, on 18 August 2017, at 15.54, she emailed the tribunal copying Mr Coyle, stating: “Please see the attached document to be placed before the Tribunal Judge. Case Number: 3323750/2017 7 Kindly please again note that I am unavailable on 22nd August 2017, 01st September 2017 and will be moving to new accommodation in September/October 2017. I have a valid claim with merits against the respondent. As I have stated in previous correspondence I have limited internet and can confirm I have not received the court orders by email or post. I will try to log in as often as I can. I ask the tribunal Judge to consider my accessibility to the internet pending and during the move. Please also note that once I have moved I will have to make arrangements for post to be delivered to me too. I look forward to hearing from the Tribunal as a matter of urgency.” (113)

[36]The attachment was her application to set aside the dismissal and for an extension of time to comply with the orders of 1 June 2017 in which she stated that the hearing went ahead in her absence despite requests for an adjournment. She had written to the tribunal on 25 June 2017, stating that she had not received the case management orders for the hearing on 1 June. The respondent’s solicitors failed to bring the case management orders to her attention at the time when she was in correspondence with them. She made 15 calls to the tribunal about the orders on 3 July 2017 but was only able to speak to a clerk at 4.45pm who told her that the orders have not yet been typed, that the preliminary hearing had been adjourned and that costs would be considered at that hearing. She stated that she had started a new temporary role as a Child Care Paralegal within a very busy department and that it was not possible for her to call the tribunal every day. In preparing for the adjourned hearing, she logged on to her emails to discover the Confirmation of dismissal of claim dated 18 August 2017 and the respondent’s application for an unless order dated 4 August 2017, which was, she asserted, ambiguous as it did not provide her with a compliance date which meant that should could respond at “her earliest convenience.” She asked that the dismissal be set aside as she was unable to attend the hearing on 1 June 2017 and that she be given time to comply with the orders. She objected to the respondent’s costs application. (114-116)

[37]She said she had stopped taking medication and that the effects of not doing so was the reason for not reading her e-mails. She resumed on or after 21 January 2018.

[38]She wrote in paragraphs 22 and 23 of her witness statement, the following: “22. Due to the treatment I had endured, I was left battered and bruised. I am currently suffering from short-term memory loss, I become confused and cannot always absorb the information before me when reading or listening. I am suffering with headaches too from the stress and the ordeal. I find myself staring into space and when at work I find my mind drifting off and thinking about everything that has happened to me. 23. I do not know the long-term implications of the memory loss and confusion. My GP prescribed me medication, the medication would make me drowsy and sleepy.” Case Number: 3323750/2017 8

[39]She did not produce any evidence of the medication she was taking at the relevant time, although she said she might have photocopies of her prescriptions.

[40]On the same day, 18 August 2017, at 14:31, Mr Coyle wrote to the tribunal, copying in the claimant, as the claimant had copied in him in her e-mail, to confirm that both parties received a copy of the tribunal’s orders on 5 July 2017. He also confirmed that the respondent’s application for an unless order was copied to the claimant on 4 August 2017 and that she was copied in the tribunal’s unless order on 14 August 2017. On that basis, the respondent could see no reason why she had not been in receipt of any of the correspondence. It was its contention that she was fully aware of the correspondence and had been given a reasonable time in which she should comply with the tribunal’s orders. Her conduct was evidence that she was not actively pursuing her claim. In addition, her conduct in failing to comply with the tribunal’s orders amounted to unreasonable behaviour. For those reasons, the respondent objected to any application to reconsider the tribunal’s dismissal of the claims. (page 112)

[41]Following on from his e-mail, again on the same day, at 15:54, the claimant e-mailed the tribunal and copied in Mr Coyle. She wrote, amongst other things, the following: “As I have stated in previous correspondence, I have limited access to the internet and can confirm I have not received the court orders by e-mail or post. I will try to log-in as often as I can. I asked the tribunal Judge to consider my accessibility to the internet pending and during the move. Please note that once I have moved, I will have to make arrangements for post to be delivered to me too. I look forward to hearing from the tribunal as a matter of urgency.” (113)

[42]She said in evidence that she had received the unless order by post and that since 18 August 2017, she did not change the means by which she communicated, and others communicated with her. She had taken the Thursday and Friday prior to the re-listed preliminary hearing on 21 August, in order to prepare for it. She said that it was possible that on 17 August she had accessed her g-mail account but did not see the e-mail and attachment from the tribunal dated 14 August 2017 at 13:37, the reason being that she was more focussed on preparing for the adjourned hearing. Submissions

[43]Mr Isaacs, counsel on behalf of the respondent, submitted rule 86 of the tribunal’s rules, states when service of documents by the tribunal is deemed to have been received. The claimant had told the tribunal that the mode of communication was to be by e-mail. Rule 90 provides for deemed service. If an e-mail is delivered it is taken as having been received unless on the contrary is proved by the claimant. The burden is on the claimant to prove that she had not received the electronic or postal Case Number: 3323750/2017 9 communication from the tribunal. In this context, she had no difficulty communicating up to 1 June 2017. She used her g-mail account. She had difficulty in relation to documents being accessed by her mobile phone. However, had continuing access to her g-mail account through her web browser, her laptop and computer.

[44]She did not attend the hearing on 1 June 2017 and was aware that case management orders were issued because she called the tribunal to find out and was told that orders were made and would be sent out once typed.

[45]By 25 June 2017, she did not receive the orders and wrote to the tribunal.

[46]Case management orders were sent to her correct e-mail address on 5 July 2017. The respondent had received the communication from the tribunal on that date. There was no evidence adduced to show that was having problems accessing her e-mails via her g-mail account. She had accessed her g-mail account on 28 July 2017. She either did not bother to read her e-mails prior to 28 July 2017, or had read them but ignored them.

[47]It was “fantastical” for her to suggest that she would not have been aware of the orders. This would indicate that she was either negligent in not looking or, having read it, ignored it.

[48]The respondent copied in her on 4 August 2017 in connection with its strike-out and unless order application. On 14 August 2017, the Employment Tribunal re-sent the unless order to her.

[49]She took Thursday 17 and Friday 18 August to prepare her case for the hearing on 21 August. The 17 August 2018 was within the time for compliance with the unless order she had received. Even if she did not access her g-mail account, she was sent the order by post.

[50]She had not discharged a burden place on her to show that she did not receive case management orders in respect of the hearing on 1 June 2017, or the unless order.

[51]Mr Isaacs relied on the case of Thind v Hylton.

[52]In relation to the factors to be considered, the claimant had not shown a good reason for failing to comply with the unless order. She had been negligent in failing, or deliberately failed, to check her e-mail account.

[53]In relation to the seriousness, he relied on the case of Oak Cash. He asserted the claimant’s breach was serious because it was important for her to clarify her case of the preliminary hearing because failure to do so would cause delay and increase costs which would affect the course of the hearing. The failure to comply even with unless order highlights the seriousness of the breach. The Employment Tribunal must not be quick to grant relief in such circumstances.

[54]In relation to prejudice, Mr Isaac submitted that the claims are historic. The allegations involved comments unlikely to be supported by Case Number: 3323750/2017 10 documentary evidence. The claimant stated that she suffers from short-term memory loss and there remains the question as to whether what she says about her treatment is true. The respondent has incurred costs in dealing with the case against it and she appears to have accepted that her case has not been adequately particularised. The issues are not clear, and the parties are no further forward with this litigation since May 2017.

[55]In relation to whether or not a fair trial is possible, the claimant’s failure to particularise her claims makes a fair trial impossible and Mr Isaac relied on the case of Hylton, an inadequately particularised claim means that a fair trial is impossible. He then looked at the claims as pleaded, identifying inadequate particularisation, jurisdiction of issues and new claims. He submitted that the document presented by the claimant was not in compliance with the tribunal’s order. He asked that the respondent’s strike-out application dated 8 March 2018 in relation to the claimant’s inadequate particularisation for the claim be granted. (pages 142 to 143)

[56]The claimant stated that she did not receive the orders. If she had, she would have responded. There was a bounce bank for e-mails. She sent her written statement but it bounced back due to the size on 25 January 2018. In her set-aside application she stated that she was starting a new job, had arranged to start on 1 June 2017 which corresponded with the tribunal and she wanted a postponement. If she had failed to turn up for work she was going to be sanctioned by being deprived 90 days benefit by the Department for Work and Pensions. She was not aware that the hearing had gone ahead and received the orders on 18 August 2017. She referred to the case of Abraham v RBS, in relation to setting aside orders of the tribunal. Her claims had been struck out before she had received the case management orders.

[57]As regards the case of Hylton, she submitted that the process was not penal and the facilitated application for a strike-out order was not valid as she did not understand it as when she received the orders on 18 August 2017 she responded. She made repeated phone calls to the tribunal on the day of the hearing. She says she had move from her Luton address.

[58]She referred to the case of Neary submitting that setting aside a strike-out order must be in the interest of justice. She had discriminated by a number of individuals at the time she was working for the respondent and was dismissed because as an Indian Sikh she had been racially discriminated against by those who were Pakistani Muslim. Her claims of victimisation, race, religious discrimination are in her form. The respondent is aware of the circumstances of her treatment as they were discussed during her appeal.

[59]In relation to prejudice, she submitted that she was not given the opportunity to defend herself internally while she was working for the respondent at a probation meeting and appeal meeting. She should be allowed to put her case forward. She had been discriminated against and Case Number: 3323750/2017 11 was not aware of the Employment Tribunal procedures or she would have clarified her case had she been able to attend the hearing on 1 June 2017.

[60]As regards the seriousness of the breach, she submitted that she either set aside the strike-out order as soon as she became aware of it. She should be allowed to proceed with her claims against the respondent based on her treatment. She has a right to a fair trial and to cross-examine the respondent’s witnesses. She could not understand how the respondent has been prejudiced. She reiterated when she received the orders from the tribunal. In relation to the respondent’s strike-out order, she referred to the response I gave on 4 April 2018, which she took as a rejection of the respondent’s application. She submitted that the application had already been determined by me, referred to the case of Henderson v Henderson and also Johnson v Gorewood & Co 1

[2002] 2 AC1

, as it was an abuse of process to resurrect an issue that had already been determined. She also referred to the case of Ladd v Marshall.

[61]Mr Isaac’s, in response, stated that the respondent has lost the opportunity of a hearing within a reasonable time and that the claimant was the author of her own misfortune. She still has contractual claims she can bring to County Court. In her further information, she has raised new allegations without an application to amend and therefore they should be struck out. The existing allegations within in her claim form could proceed if she overcomes the respondent’s objections to setting aside the strike-out order.

The Law

[62]Rule 3.9, relief from sanctions in the Civil Procedures Rules 1998, states the following: “(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice, direction or court order, the court will consider all the circumstances of the case, so far as to enable it to deal justly with the application, including the need –(a) For litigation to be conducted efficiently and at proportionate costs; and

(b) To enforce … with rules, practice directions and orders.”

[63]Rule 38 of the Employment Tribunal’s (Constitution and Rules of Procedure) Regulations 2013, schedule 1 provides, in respect of unless orders: “(1) An order may specify that if it is not complied with by the date specified, the claim or response, or part of it, shall be dismissed without further order. If a claim or response, or part of it, is dismissed on this basis the tribunal shall give written notice to the parties confirming what has occurred. (2) A party whose claim or response is being dismissed, in whole or part, as a result of such an order may apply to the tribunal in writing, within 14 days of the date that the notice was sent, to have the order satisfied on the basis that it is in the interest of Case Number: 3323750/2017 12 justice to do so. Unless the application includes a request for a hearing, the tribunal may determine it on the basis of written representations. (3) Where a response is dismissed under this rule, the facts shall be as if no response had been presented, as set out in rule 21.”

[64]The tribunal’s strike-out powers are in rule 37, this provides: “37 – striking out(1) At any stage of the proceedings, either on its own initiative or on the application of a party, the tribunal may strike out all, or part of a claim or response on any of the following grounds – (a) That 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).

(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.

(3) Where a response is struck out, the effect shall be as if no response has been presented, as set out in rule 21 above.”

[65]In the case of Thind v Salversen Logistics Limited [2010] UK

EAT/0487/09

, Underhill P as he then was, applied the judgment in the case of Governing Body of St Albans Girls School and another v Neary

[2009] EWCA CIV 1190

. His Lordship held that there was no obligation on the tribunal to proceed by reference to CPR 3.9. In his judgment he stated the following: “the law as it now stands is much more straight forward. The tribunal must decide whether it is right, in the interest of justice, and the overriding objective, to grant relief to the party in default, notwithstanding the breach of the unless order. That involves a broad assessment of what is in the interest of justice, and the factors which may be material to that assessment will vary considerably according to the circumstances of the case and cannot be nearly categorised. They will generally include, but not be limited to, the reason for the default, and in particular, whether it is deliberate; the seriousness of the default; the prejudice to the other parties; and whether a fair trial remains possible. The fact that an unless order has been made, which of course puts the party in question squarely on notice of the importance of complying with the order and the consequences if he does not do so, will always be an important consideration. Unless orders are an important part of the tribunal’s procedural armoury (albeit one not to be used lightly), and they must be taken very seriously; their effectiveness will be undermined if tribunals are too ready to set them aside. But that is nevertheless, no more than one consideration. No one factor is necessarily determinative of the course which the tribunal should take. Each case will depend on its own facts.” Case Number: 3323750/2017 13

[66]In the case of Oak Cash & Carry Limited v British Gas Trading Limited, Oakcash appeared against the refusal of relief and sanction, as its defence had been struck-out for non-compliance with court orders, pursuant to Civil Procedure Rule 3.9. One of the issues for the Court of Appeal to determine was whether or not, in assessing the seriousness of non-compliance with an unless order, the court should have regard to the original breach which gave rise to the unless order. Lord Justice Jackson gave the leading judgment he held: “Paragraph 37 ….. at stage 1, the court must ignore X’s historic breaches and assess the breach in respect of which X is seeking relief. 38 …. An unless order, however, does not stand on its own. The court usually only makes an unless order against a party which is already in breach. The unless order gives that party additional time for compliance with the original obligation and specifies an automatic sanction in default of compliance. It is not possible to look at an unless order in isolation. A party who fails to comply with an unless order is normally in breach of an original order or rule as well as the unless order. 38 In order to assess the seriousness and significance of a breach of an unless order, it is necessary also to look at the underlying breach. The court must look at what X failed to do in the first place, when assessing X’s failure to take advantage of the second chance which he was given. 40. In my view, the phrase “the very breach”, in paragraph 27 of Denton, when applied to an unless order, means this: the failure to carry out the obligation which was(a) imposed by the original order or rule and

(b) extended by the unless order. 41. The very fact that X failed to comply with an unless order (as opposed to an ‘ordinary’ order) is undoubtedly a pointer towards seriousness and significance. This is for two reasons. First, X is in breach of two successive obligations to do the same thing. Secondly, the court has underlined the importance of doing that thing by specifying an automatic sanction in default (in this case the draconian sanction of strike-out)”.

[67]In the Oak Cash and Carry Ltd, case the Court of Appeal concluded that Oak Cash’s breach was significant and serious.

[68]In the case of Denton v TH White Limited [2014], EWCA CIV 906, in that case by a majority, the master of the roles and Vos LJ, held by “the assessment of the seriousness or significance of the breach should not, initially at least, involve a consideration of other unrelated failures that may have occurred in the past. At the first stage, the court should concentrate on an assessment of the seriousness and significance of the very breach in respect of which relief and sanctions is sought. We accept that the court may wish to take into account, as one of the relevant circumstances of the case, the defaulters previous conduct in the litigation (for example, if the breach is the latest in a series of failures to comply with orders concerning, say, the service of witness statements). We consider that this is better done at the third stage, rather than as part of the assessment of seriousness or significance of the breach. Case Number: 3323750/2017 14

[69]In the case of Opara v Partnesrhips in Care Ltd

UKEAT/0368/09

, …………at the EAT, held, “When a Tribunal is considering whether to grant relief against a sanction, the main focus will be on the default itself –(1) the magnitude of the default;

(2) the explanation for the default;

(3) the consequences of the default for the parties and the proceedings;

(4) the consequences of imposing the sanction on the parties and the proceedings; and

(5) the promptness of the application to remedy the default. These are the principal factors the Tribunal will have in mind when it considers the interests of the administration of justice, and above all whether it is unjust and disproportionate to impose the sanction.”

[70]In the case of Hylton v Royal Mail Group [2015] UK

EAT/0369/14

, in considering rule 38 (2) Employment Tribunal’s Rules of Procedure, Langstaff P held: “21. The purpose of case management orders is in general to secure, where that remains possible, that there should be a fair hearing of the allegations made by one party against the other. Where accusations have been made on a very generalised basis, as here, clarity of the accusation is needed. The respondent is entitled to know what acts it is being accused of and the tribunal cannot adjudicate properly unless that is the case. Unless and until this done, it is difficult, if not impossible, to have a fair trial. As observed in Johnson v Oldham, parties are entitled to know the case against them. 22. It must usually be the case that, where a claim has been struck-out because of a failure to provide such information, but by the time of an application for relief, the information has been supplied, the court will grant relief. The purpose of orders would have been achieved. Again, as observed in Johnson, the approach should be facilitative rather than penal. That cannot, however, apply where there has been no compliance, even at the stage of seeking relief from the order which was made. Orders are made to be observed. As was said by Underhill J (as he was) in the case of Thind v Salversen Logistics Limited…. every case turns on its own facts, and it should not be thought to be usual that relief will be granted from the effect of an unless order …..”

[71]On the delivery of document to the parties, rule 86 TR 13 provides: “86. Delivery to parties: (1) Documents may be delivered to a party (whether by the tribunal or by another party) – (a) By post; (b) By direct delivery to that party’s address; (including delivery by a courier or messenger service); (c) By electronic communication; or (d) By being handed personally to that party, if an individual and if no representative has been named in the claim form, or response; or to any individual representative named in the claim form or response; or, on the Case Number: 3323750/2017 15 occasion of a hearing, to any person identified by the party as representing that party at that hearing”.

[72]Rule 90 deals with the date of delivery and states: “90. Date of delivery Where a document has been delivered in accordance with rule 85 or 86, it shall, unless the contrary is proved, be taken to have been received by the addressee –(a) If sent by post, on the day on which it would be delivered in the ordinary course of post;

(b) If sent by means of electronic communication on the day of transmission;

[73]I have also taken account of rule 38(2) Employment Tribunal (Constitution & Rules of Procedure) Regulations 2013, as amended.

Conclusion

[74]I have come to the conclusion that the claimant was negligent in failing to enquire of the tribunal’s orders sent to her on 5 July 2017.

[75]I am persuaded that a fair trial is still possible notwithstanding the age of the allegations. There appears to be a considerable amount of documentation in this case, notwithstanding the statement that the claimant made. Despite suffering from short term memory loss, throughout this hearing she was able to go back in time, give an account of her experienced while she was working for the respondent.

[76]Having taken into account these matters, I have come to the conclusion that the order should be set aside and the claimant be given the opportunity to put a case before a full tribunal.

[77]In relation to the claimant’s reasons for not complying, the case management orders and/or the unless order, being that she had not received them, I do not accept. Rule 90 ETR provides for a seat of electronic communication on the day sent. It is possible for a party to be in ignorance of electronic communication being sent by the tribunal if they do not have the means to read the information. In this case, however, I was satisfied that the claimant communicated with the tribunal and with the respondent’s representatives via her g-mail account up to 1 June 2017 and according to her from 18 August 2017. In between those dates, I find that she failed to read important correspondence following her non-attendance at the hearing on 1 June 2017. She also said that she was more focussed on her new job but that does not provide a good reason for failing to read important correspondence. She was negligent in opening and in not reading her e-mails and post from the tribunal.

[78]I accept that the breach of the unless order was serious and … from the tribunal’s order for further information by 18 July 2017. This led the respondents to take an application on whether to strike-out the claims or Case Number: 3323750/2017 16 an unless order be issued, on 4 August 2017 which the claimant ought to have known about had she at the time read her e-mails. She is someone with experience in civil litigation and must know that there are likely to be orders issued by a court or tribunal following a hearing. As a result of her conduct, the tribunal dismissed the claims against the respondent.

[79]In my view, as I am not possessed of much more detailed evidence than at the earlier preliminary hearing in February 2018, I have come to the conclusion that the claimant serious and significantly breached the terms of the unless order in negligently failing to check her e-mails and post from the respondents from the tribunal.

[80]As regards prejudice, I accept that the respondent has lost the opportunity of the hearing taking place within a reasonable time period; that the claims are historic; and is prejudiced by the delay; and it has incurred significant costs.

[81]On the other hand, the claimant has made serious allegations against the respondent’s employees. She followed the internal processes which have been documented. The respondent knows of the claimant’s case and the claimant presented her claim form to the tribunal and it was in the position to respond in great detail. It was not told who have left the respondent since the presentation of the claim form, and who may give relevant evidence. Although the claimant stated she suffers from short term memory loss, it had not impacted on the way in which she gave her evidence before me. She was able to explain her conduct, not only during her employment but in relation to the events leading up to and after her claims were dismissed by the tribunal. Her short term memory loss, will have, in my view, limited impact on the cogency of her evidence. She was able to give detailed answers in response to Mr Isaacs questions and in response to my questions.

[82]Is a fair trial possible? The respondents say that the claimant’s failure to adequately particularise her claims makes a fair trial impossible. I brought to counsels’ attention what I recorded in my notes at the last hearing in February 20108. What he said to me in answer to what I believe questions I put to him in relation to this issue, was “cannot say whether a fair trial is possible”. I have considered that reply significant and concluded that the respondent’s position on this particular issue was “neutral”.

[83]In the EAT judgment, paragraph 42, my conclusion that the respondent’s position on a fair trial as being “neutral” described as a “mischaracterisation”. Neither party asked for my notes to be produced at the Employment Appeal Tribunal. Had that been done it would have disclosed my note on respondent’s submissions on this particular issue.

[84]I accept that counsel’s written submissions in February 2018 would not have had a particular note as it followed and inter-change I had with him at the time. Case Number: 3323750/2017 17

[85]I am not persuaded that a fair trial is impossible. The claimant has a clear recollection of events while she worked for the respondent. Her claim form is quite detailed in terms of her wrongful dismissal, race and religious discrimination claims. She identifies her alleged perpetrators and deals with her termination and her appeal against dismissal. The respondent’s response addresses the factual allegations, explains reasons for the claimant’s dismissal and the conduct of the appeal. Under a separate heading “further allegations” it challenges the claimant’s case against named individuals.

[86]Balancing as I do, all of the above factors, not one of which has determinative of the outcome. I have taken into account prejudice and fair trial as well as the seriousness of the default but on balance have come to the conclusion that there is greater prejudice to the claimant if the dismissal is not set aside. Furthermore, a fair trial is possible in this case. I will therefore set aside the dismissal. _____________________________ Employment Judge Bedeau Date: …06/03/2020 Sent to the parties on: ...06/03/2020 ........................................................... For the Tribunal Office Case Number: 3323750/2017 1 EMPLOYMENT TRIBUNALS Claimant: Miss M Puar Respondent: Duncan Lewis Solicitors Ltd Heard at: Watford On: 21, 22, 23, 24, 25 & 28 February 2022, 1 March 2022, panel only 24 & 25 March 2022 Before: Employment Judge Maxwell Ms Jaffe Mrs Hancock Appearances For the Claimant: in person For the Respondent: Mr Issacs, Counsel

[87]As far as the Claimant’s other ground for a postponement is concerned, which was procedural default on the Respondent’s part, rendering a fair trial not possible, our conclusion, for reasons we will set out below, is that the lack of preparedness is the result of the Claimant failing to comply with the Tribunal’s orders (which she cannot rely upon to support a postponement) and that a fair trial is still possible in the current window.

[88]The Claimant’s grounds for a postponement are not substantiated. The case is already very old, with allegations concerning a period more than 5 years ago. Whilst some of the complaints relate to documented matters, such as her dismissal, others involve alleged oral discriminatory comments. The Respondent’s witnesses will, therefore, be required to rely upon their recollection of what they did or did not say, going back many years, with no contemporaneous record to support them. If the case were now to be postponed, it could not be re-listed before late 2023. At that point, the disputed events would have occurred more than 7 years previously. The Respondent’s witnesses would be greatly prejudiced. To the extent the Claimant is less prepared than she should be if the case goes ahead in the current window, she is responsible for that state of affairs. Case Number: 3323750/2017 22

[89]There are no exceptional circumstances, within rule 30A(2)(c).

[90]The balance of prejudice and interests of justice weigh heavily in favour of refusing the Claimant’s postponement application. Strike Out

[91]We are satisfied:91.1 the manner in which the proceedings have been conducted the Claimant has been unreasonable;

91.2 she has not complied with the Tribunal order made by EJ Ord on 22 January 2021:91.2.1 to provide list and copy documents by 12 March 2021;

91.2.2 within 14 days of receiving the draft index to identify any documents which are not in the index which she wishes to have added to the bundle;

91.2.3 to provide her witness statement by 2 July 2021;

91.3 she has not actively pursued her claim.

[92]In March 2021, the Respondent complied with its obligation to provide disclosure. At that point, the Respondent confirmed that it had nothing further to disclose, beyond that which it had already provided to her in October 2018. The Respondent did, however, offer to provide a further copy of this if the Claimant required it. The Respondent’s “position” on disclosure was clear from that point.

[93]The Claimant’s position on her own disclosure was vague, difficult to understand and inconsistent. To begin with, in March 2021, the Claimant took no issue with the Respondent having satisfied its obligations in this regard, but explained that she needed more time, seemingly in order to obtain the mitigation evidence she wanted to rely upon. She apologised to the Respondent for the delay caused. Then on 17 June 2021, which is to say 3 months after the Respondent had made its position on disclosure clear, the Claimant wrote asking the Respondent to let her know its “position” on disclosure. This was an unreasonable way for the Claimant to conduct the proceedings.

[94]At the same time, the Claimant also made a vague reference to having requested additional disclosure in 2018. She did not, however, identify any documents she required, whether by repeating the content of the earlier request, forwarding a copy of the original request, or otherwise. Nor did she offer to provide this again. The Claimant has considerable experience of litigation, in the Civil Courts through her work and in the Employment Tribunal through her various claims. The way in which she was conducting the proceedings was unreasonable.

[95]On 18 June 2021, the Respondent confirmed that it had dealt with the Claimant’s 2018 disclosure request. If the Claimant was dissatisfied with the Respondent’s response in 2018, then it was open to her to press the matter and apply to the Case Number: 3323750/2017 23 Tribunal for an order then. Simply to ignore the point for 3 years was unreasonable. Proceeding, after 3 years, as though this were then a good reason for her not to comply with her own obligations to make disclosure, agree a bundle and provide a witness statement, was unreasonable.

[96]On 23 June 2021, the Claimant requested a hard copy disclosure bundle. Her assertion that EJ Ord had ordered it was wrong (he directed this for the final hearing bundle only). Her delay before making this request was unexplained. The Claimant had not considered the Respondent’s disclosure at all in the time since it was provided to her. This was unreasonable. This did not justify her own failure to make disclosure, agree a bundle and provide a witness statement. Her conduct of the proceedings was unreasonable.

[97]The Claimant’s explanation that she could not read the bundle on screen because her glasses were out of date was unreasonable. 3 months is plenty of time to acquire a new pair of glasses, if this was necessary. Furthermore, she could simply have requested a paper copy in March 2021.

[98]When the Claimant wrote in August 2021, criticising the disclosure bundle, and saying she waited to hear from the Respondent about disclosure was unreasonable. The Respondent had confirmed its position on disclosure in March 2021. When in June 2021, the Claimant referred back to a disclosure request she made in 2018, the Respondent replied to say she had its answer at the time. She had no good reason to wait for the Respondent on disclosure. It had already told her its position. If she was dissatisfied in 2018, she could have applied to the Tribunal. If she was dissatisfied in March 2021, she could have applied to the Tribunal. If she was dissatisfied in June 2021, she could have applied to the Tribunal. What she could not, reasonably, do was attempt to use this as a justification for not confirming her own position on disclosure, or to not agree a bundle, or to not be ready to provide a witness statement. The date for all of these steps to be taken was overdue.

[99]The Claimant did confirm her position on her disclosure on 23 August 2021 (like the Respondent and despite recent indications to the contrary, now saying she had nothing beyond what was provided in 2018). This was a reasonable step for her to take. Her point “Your client has not given me a list of documents apart from what is in the bundle that you have sent me, which is not 'disclosure’” was unreasonable. The Respondent’s obligation was to provide to the Claimant a list and copy of the documents in its possession, which were relevant to the issues in the case. The Respondent had repeatedly confirmed its position, namely that it had done this. The Claimant had been sent the documents previously. If she believed the disclosure was insufficient, then she ought to have applied to the Tribunal. Using this as an excuse not to send the respondent a list, identifying the additional documents she wanted added to this for the trial bundle, was unreasonable.

[100]The Respondent wrote again on 5 October 2021, emphasising the urgency of the need to finalise a hearing bundle. Given a 7-day hearing due to start in February 2022, the position was now urgent. Despite this, the Claimant did not reply until 27 November 2021, almost two months later. This delay was unreasonable. The Claimant criticised the bundle and asked, yet again, for the Respondent to confirm its position. The Respondent had already done this, Case Number: 3323750/2017 24 repeatedly. Corresponding in this way was a waste of time, at a point when there was no time to lose.

[101]The Respondent confirmed its position, again, on 2 December 2021. On 4 December 2021, the Claimant made an extraordinarily broad disclosure request. At this late stage, simply to request, in effect every document that touched upon her employment at all, was excessive and unreasonable.

[102]The Claimant applied to the Tribunal for disclosure on 3 January 2022. Had this been limited and narrow, it might have been appropriate. In the vast form adopted, it was far too broad, far too late and would seem likely, if granted, to de-rail the current hearing. This was unreasonable.

[103]Having received no meaningful cooperation from the Claimant, the Respondent prepared the bundle by itself and sent this to her digitally on 9 February and offered it in paper form on 10 February 2022. The Claimant ignored both the digital copy and offer of a paper one. This was unreasonable.

[104]The Respondent provided its witness statements to the Claimant, albeit with password protection. The Claimant did not provide her statement to the Respondent. The Claimant says she could not prepare a witness statement because the bundle had not been finalised. The bundle was finalised and provided to her. She had been sent most of the documents more than 3 years previously. The Claimant should have prepared her own witness statement. The purpose of her witness statement would have been to set out her recollection of events and why she believed she had been discriminated against, harassed and victimised. She did not need a hearing bundle to do that. If she wanted to insert page numbers, this administrative task could easily have been accomplished once she received the final bundle. To the extent that she wished to comment on the content of documents, she could do this orally or in written submissions, this is not something that had to be in a witness statement.

[105]The Claimant did not cooperate with the Respondent, She did not adopt a clear and consistent position with respect to her own disclosure. The Claimant repeatedly asked the Respondent to confirm its position on disclosure when it had already done so. The Claimant did not identify the documents she wished to be added to the bundle the Respondent had prepared. Having not cooperated with the agreement of a hearing bundle, the Claimant used this as a reason not to provide a witness statement. This was in breach of the Tribunal orders and amounted to unreasonable conduct.

[106]The Claimant’s approach to the proceedings between March 2021 and February 2022, evidences a failure actively to pursue her claims. The Claimant’s conduct is consistent with a wish to keep the proceedings alive but not reach a final hearing, either at all or within a reasonable period.

[107]Accordingly, we are satisfied of the matters within rule 37(1)(b), (c) and (d). On this basis the Tribunal may strike out the Claimant’s claim. The next relevant question, is whether a fair trial is still possible. We believe such a trial can take place, but only just. The current trial window represents the last chance saloon for the Claimant’s claim Case Number: 3323750/2017 25

[108]Until 16 February 2022, the Respondent was still pressing the Claimant for her witness statement. When she did not provide this, unsurprisingly, the Respondent decided to seek a strike out. The Respondent argues that because the Claimant has not provided a witness statement, a trial cannot take place in the current window. Furthermore, if the trial is postponed, then given the case is unlikely to be re-listed until late 2023, at that stage it will no longer be possible to hold a fair trial because of the passage of time.

[109]We agree with that last point. By late 2023, it will be 7 years since the events about which the Claimant complains. It is unrealistic and unfair to expect witnesses to be able to recall events and speak from their memory, after such a long time. The danger is that witnesses who are supported by contemporaneous documents, will be able to do little more than tell the tribunal what the documents say. Their independent recollection will be exceedingly limited. There are also, however, numerous allegations where there is no contemporaneous documentary evidence. When the witnesses to these allegations are asked questions about what was said and done, or not said and done, on particular days, 7 years ago, that may have seemed wholly unremarkable to them at the time, they will have nothing to support their recollection. This will place them in an invidious position. We are also mindful that several of the witnesses are no longer employed by the Respondent. Whilst their participation has been obtained voluntarily for this hearing, there is no certainty that will be true at the end of 2023. The point may be reached when they do not want to keep being brought back to their experiences with the Claimant in 2016. Witness orders might be sought in such circumstances, although that mechanism does not put the Respondent in as good a position as where attendance is voluntary. There is also risk with respect to the Claimant’s health. Whilst we were not satisfied on this occasion that her ill health justified a postponement, we do not know what the position might be in late 2023. The proximity between the Claimant contacting her GP and the beginning of this trial window is difficult to ignore. The Claimant has other claims before the Tribunal and an accumulation of ongoing proceedings is unlikely to make a lengthy hearing seem to her a more manageable prospect.

[110]Whilst we do not think there can be a fair trial outside of the current window, we do believe that can still be achieved within in it. During the course of argument, the Judge invited the parties to comment on the possibility of the Claimant’s amended particulars of claim and schedule of allegations, standing in lieu of a witness statement. These are documents the Respondent has already seen and will not take it by surprise. Indeed, the Respondent’s witness statements must have been, largely, prepared in response to these documents. Mr Issacs said that was not a suitable course of action in a case such as this, where the Claimant makes serious allegations of dishonesty and discrimination, against professional people. He also drew our attention to deficiencies in the pleadings, where vague language is used and the substance of the alleged detriment is unclear. He said that he would have to challenge the Claimant on those allegations and this risked new information coming out, which would take the Respondent by surprise and he would have no instructions. He then contrasted that position with one where the Claimant had set out her position fully in a witness statement. He also made the fair point that, especially in a harassment claim, separately from whether a thing was said or not, the context matters. Case Number: 3323750/2017 26

[111]We have carefully considered the Claimant’s most recently amended particulars of claim document, along with her two schedules of allegations. There is a substantial, although not complete, overlap between the documents. The amended particulars of claim include a lengthy and detailed factual narrative, of the sort that might often be found in a witness statement. It also expressly incorporates and adopts contemporaneous documents and prior statements of case. This is in many respects a comprehensive account. The Respondent prepared its witness evidence on the basis of this pleaded case. One solution to the vague allegations in the pleaded case would have been to seek further particulars. The Respondent chose not to do that. There was then always the possibility the Claimant might say more later and then further instructions would need to be sought from the Respondent’s witnesses. If the Claimant had produced a witness statement that contained a more detailed account of particular allegations, the Respondent’s witnesses could have been asked for their comments in advance of the hearing. If the Claimant produced a witness statement that was no more comprehensive than her pleadings, then no further instructions could have been taken before the hearing. In either event, there would always have been the possibility of the Claimant saying more at the hearing itself, in the course of cross-examination, in which case instructions would have to be taken at that point. In any of those eventualities, the witnesses would be asked for their recollection of the new detail, at a point 5 years after the event. We think that any prejudice to the Respondent from the Claimant relying upon her amended particulars of claim and schedules in lieu of a witness statement will be limited and can be minimised by allowing the Respondent a short adjournment during the hearing to take instructions if this is required. Furthermore, to the extent, if at all, a wholly new and detailed account of one or more allegations emerges for the very first time in cross-examination, the Respondent will be able to make points on credibility in that regard.

[112]Mr Issacs also relied upon various matters suggesting the Claimant had not made full disclosure with respect to mitigation. He said this was not merely a remedy matter but went to credibility and, therefore, was material to liability. We think this point might have been stronger if the Respondent had applied for specific disclosure of such documents and the Claimant not complied. He can in any event put to her in cross-examination, briefly, any facts which are said to show she has failed to disclose all of the relevant documents in her possession.

[113]Whist the Claimant might have been better served by a witness statement prepared for the purpose, the absence of that is a situation of her own making and does not lead to the conclusion that a fair trial cannot be had. To the extent she did not look at the bundle until the start of the hearing and / or did not prepare in other respects, the same is true.

[114]For these reasons we are satisfied a fair hearing can take place in the current window and it would not be proportionate to strike out the claim. Disclosure

[115]We refuse the Claimant’s disclosure request.

[116]The claim has been extensively case managed over a period of nearly 5 years. The Respondent provided its main disclosure in October 2018. The Claimant Case Number: 3323750/2017 27 had ample opportunity to apply to the Tribunal for specific disclosure, without leaving this to the month before the trial window, long after the point when not only should disclosure have been complete but also a bundle ought to have been agreed and witness statements exchanged. Her application was far too late.

[117]The disclosure application is vast, running over several pages, in some respects seeking information rather than documents, and where documents are sought, in some instances by reference to very broad categories rather than an individual letter or email.

[118]The Claimant’s position that she needed all of this to prepare her witness statement, in substance even if not her intention, seeks to turn back the procedural clock, giving her an opportunity to find her case by trawling through new disclosure, rather than setting out her existing complaints.

[119]With respect to documents connected with the Claimant’s dismissal, the Respondent says it has made a proportionate search and disclosed the product of that. No proper basis has been advanced upon which the Tribunal should seek to go behind that.

[120]The Respondent said any disclosure sought with respect to the conduct or performance of other employees must be irrelevant because the Claimant relies upon a hypothetical comparator. We think that proposition overstates the position, somewhat. Evidence of how a non-statutory real comparator was treated may inform findings about how a hypothetical comparator would have been treated. Had a limited application been made at an earlier point in time, relating to specific identified events, then an order may have been appropriate. At this point, given a sprawling application, it is excessive and disproportionate.

[121]The Respondent has already provided some of the documents the Claimant sought, only she was unaware of this because she chose to ignore the hearing bundle until the hearing began.

[122]With very considerable judicial resources and party expense, a long list of alleged acts of discrimination, harassment and victimisation has been prepared by the Claimant. She must know why she believes all of these allegations are proper for her to make and she should not need to go hunting for that now in disclosure, 5 years on from the events in question. Even if some of the documents sought are relevant, we are not satisfied they are necessary.

[123]Any significant new disclosure would necessitate a substantial further search, the taking of further instructions from the Respondent’s witnesses and prevent a trial taking place in the current window. The Claimant recognises this, as it was part of what she relied upon for needing a postponement. This current window is, realistically, the last chance for a fair hearing.

[124]The interests of justice would not be served by making an order for further disclosure. Case Number: 3323750/2017 28 Substantive Hearing

Claims

[125]The Claimant brings claims of:125.1 Direct discrimination [race and religion or belief];

125.2 Harassment [race and religion or belief];

125.3 Victimisation;

125.4 Wrongful dismissal.

[126]The Claimant has prepared two schedules setting out the matters that she relies upon as detriments for her EqA claims.

[127]The wrongful dismissal claim is based upon the proposition the Claimant was by the time of dismissal entitled to one month’s notice, rather than the one week she was given. Documents &

Evidence

[128]We were provided with a hearing bundle prepared by the Respondent, running to page 735. Although some late disclosure was provided to the Claimant by the Respondent, the product of a further search having been prompted by her recent application, neither party applied to add this to the hearing bundle.

[129]We received witness statements and heard oral evidence from:129.1 Ms Manjeet Paur, the Claimant (her amended particulars of claim and two schedules of discriminatory acts serving as her witness statement);

129.2 Mrs Mubashra Khan, at material times a solicitor employed by the Respondent;

129.3 Ms Fara Khan, at material times a trainee solicitor employed by the Respondent;

129.4 Mrs Karina Parmar, a solicitor and director of the Respondent;

129.5 Mr Jasbir Raindi, at material times a solicitor and director of the Respondent;

129.6 Mr Jason Bruce, a solicitor and director of the Respondent.

[130]We were also provided with:130.1 The Claimant’s skeleton argument;

130.2 The Respondent’s opening note and closing submissions. Case Number: 3323750/2017 29 Timetabling

[131]Notice was sent to the parties on 16 June 2021, listing the case for a 7-day hearing to include liability and remedy if appropriate (i.e. if the claim succeeded). Neither party objected to this listing or said that more time was required. Realistically and working backwards, if judgment and remedy were dealt with on day-7, then day-6 would have been required for Tribunal deliberation. This meant that the Tribunal’s initial reading, witness evidence and closing submissions would take place over the first 5 days.

[132]In the event, day-1 was required for the various contested applications, day-2 for tribunal to make its decision on the applications and then to undertake its (substantive as opposed to procedural) pre-reading. On day-3, having informed the parties of its decision on the applications, a timetable was discussed and agreed. The Tribunal had done its pre-reading, the remainder of 5 days was available for evidence and submissions. The Tribunal’s decision on liability would be reserved and a remedy hearing listed subsequently, if necessary.

[133]Because the Claimant was representing herself, it was appropriate to apportion time for the evidence of the Respondent’s various witnesses (primarily cross examination of them) as not to do so risked too much time being spent on one or more of the earlier witnesses, with little or no time then being left for questions of those who gave evidence later in the hearing.

[134]Having heard from the Claimant with her estimates, the Tribunal was concerned at the amount of time she wished to spend with Mrs Parmar and Mr Raindi, given they were not accused of discrimination. Also, the Claimant wished for the longest time with Mr Bruce, notwithstanding he was the alleged perpetrator for one complaint only, namely victimisation in rejecting her appeal, which engaged fairly narrow factual and legal issues. The Tribunal reminded the Claimant she did not have an unfair dismissal claim. The Claimant was, however, adamant she needed the time indicated with Mrs Parmar and Mr Raindi, and whilst she accepted there was only a victimisation claim relating to Mr Bruce, she said she had to go through a lot of material to establish her position on this.

[135]The Tribunal explained it would be necessary to stick to the timetable, as to do otherwise would mean the hearing not being completed within the time available, which neither party wished to see and would not have been in the interests of justice, especially give the age of this case. It was also made plain that the time allocations would incorporate Tribunal questions and re-examination also.

[136]The initial timetable agreed was:136.1 Claimant - 1 day and 3 hours (8 hours);

136.2 Mubashra Khan – 2 hours;

136.3 Farah Khan – 2 hours;

136.4 Krina Parma – 2 hours;

136.5 Jasbir Raindi – 2 hours; Case Number: 3323750/2017 30

136.6 Jason Bruce – 4 hours;.

[137]The Claimant later decided she wished to have more time with Mubashra Kahn and so it was agreed the timetable would be varied to:137.1 Claimant - 1 day and 3 hours (8 hours);

137.2 Mubashra Khan – 3 hours;

137.3 Farah Khan – 2 hours;

137.4 Krina Parma – 2 hours;

137.5 Jasbir Raindi – 1 hour 30 minutes;

137.6 Jason Bruce – 3 hours 30 minutes.

[138]During the hearing, the judge frequently remined the Claimant of the time, to assist her in keeping track of this. It was suggested that she should ask her best questions early, rather than saving these for the end. With respect to each of the Respondent’s witnesses, the Claimant wished to continue asking questions even after the allocated time had expired. A modest overrun was allowed but it did then become necessary to halt her cross-examination. On each occasion she was remined about time more than once before the guillotine came down.

[139]The importance of addressing the issues was emphasised to the Claimant, repeatedly, and it was suggested she should focus on the schedules containing her discrimination allegations. Despite this, much of her time in crossexamination was spent on general questions seeking to establish that her experience and abilities went unrecognised. Evidence in Chief and Cross-examination of the Claimant

[140]When the Claimant was about to begin giving evidence, she indicated that she wished to take with her to the witness table: her own copy of the hearing bundle; notes she had made in connection with this matter; a note pad. The Tribunal indicated that she could not take these with her and should instead use the bundles (unmarked) already on the witness table.

[141]At the end of her cross-examination, the Judge asked the Claimant whether there was anything more she wished to say about the matters she had been questioned on. In reply, the Claimant said there had been things but she had forgotten these because she had not been able to take notes.

[142]At the beginning of day-3, the Judge asked the Claimant whether she had thought of anything overnight that she would like to say to add to her evidence, before we began to hear from the Respondent’s witnesses and she said there was not.

[143]We were quite satisfied the Claimant had a very full opportunity to answer the questions she was asked in cross-examination. Frequently, her responses went well beyond (or did not address at all) the specific question asked. Rather, she would often say what she wanted to, in the general area of the question. This Case Number: 3323750/2017 31 was not a case where the Claimant’s evidence was constrained by crossexamination and she was thereby prevented from saying more on any of topics covered. Cross-Examination by the Claimant

[144]It was frequently necessary for the Judge to intervene during the Claimant’s cross-examination of the Respondent’s witnesses. These interventions were intended to be helpful to both parties and the reasons for them explained at the time, which included:144.1 The Claimant made a statement rather than asked a question;

144.2 The Claimant gave a long and detailed narrative, which although it may have included a question somewhere in the middle or at the end, was nonetheless difficult to follow;

144.3 The Claimant’s question was based upon a contentious factual proposition the witness had not been asked to agree and once the Tribunal invited their comment, which was a denial, the remainder of the question could not sensibly be answered;

144.4 The Claimant asked witnesses to accept her account with respect to events they did not witness and could not comment on;

144.5 The Claimant began her question by inaccurately summarising the prior evidence of that witness;

144.6 The Claimant spoke over witnesses when they were answering her question;

144.7 The Claimant accused witnesses of not answering her questions, or being long-winded, when they were giving answers which did respond to that which they had been asked, albeit in a way the Claimant disagreed with;

144.8 The Claimant asked questions that were not relevant to the issues the Tribunal had to decide, namely the matters set out as discrimination or victimisation in her two schedules.

[145]Fairness to both parties required clear questions be asked, relevant to the issues, which the witness was in a position to answer, since otherwise it was unfair to the witness and did not advance the cause of the questioner. Claimant’s Participation, Generally

[146]Notwithstanding the Claimant referred to suffering with tiredness, this was not evident in her participation during the hearing. The Claimant was vigorous in her oral argument and questions of witnesses. She paid close attention and was quick to intervene when she disagreed with what others were saying. The Claimant was exceedingly confident and certain. The Claimant on some days said she was happy to sit late to finish the evidence of a witness but the Tribunal could not accommodate this because of practical constraints. The Claimant was anxious the hearing not continue past 1 March 2022, as she had to go back to Case Number: 3323750/2017 32 work then. The Tribunal explained the parties would not be required to attend after that point and its decision would be reserved.

[147]It was necessary for the Tribunal to remind the Claimant, repeatedly, of the ground rules for this hearing, in particular:147.1 she should not interrupt Mr Issacs because she disagreed with what he was saying, rather she should make a note and refer to this when it was her turn to speak;

147.2 she should not interrupt witnesses when they were answering questions because she disagreed with what they were saying;

147.3 she should not speak over the Judge because she disagreed with what he was saying or a ruling which the Tribunal had been made previously.

[148]When it was drawn to the Claimant’s attention that she was not following these ground rules, rather than recognising this, she would seek to justify her intervention by explaining why she disagreed with what the other person had been saying when she interrupted them. More than once the Claimant said she did not mean to “cause offence”. No offence had been caused, the problem was nothing to do with personal feelings, rather it was that her failure to abide by the rules disrupted and delayed the proceedings.

[149]When the Claimant was being cross-examined, Counsel for the Respondent, Mr Issacs, referred to the two schedules containing her allegations of discrimination, harassment and victimisation. She removed these pages from the hearing bundle. The Tribunal suggested she should not do this, as loose pages were apt to be lost and / or become difficult to find. When the Claimant persisted in removing these pages, the Tribunal provided a treasury tag so that the loose pages could at least be kept in the correct order. Later in the proceedings, when the Claimant was cross-examining the Respondent’s witnesses on her schedules, a point was reached when she had difficulty locating the relevant pages in the bundle. The Claimant said this was because her vision had become blurred. The Tribunal at this stage noticed that, despite the advice previously given, the Claimant had removed the schedules from her own copy of the bundle and the individual pages were scattered all over the desk in front of her. The Tribunal pointed out that the disorganisation of her papers appeared to be the problem and suggested she reorganise these and put them back in the bundle. Once she had found the page, she was able to read its content and then put her question.

[150]On one occasion when the Tribunal had to intervene in the Claimant’s crossexamination, explaining that she had given a long narrative which was difficult to follow and did not include a question, the Claimant said she had started to suffer with a headache at lunchtime and this is why her questions had become less clear in the afternoon. The Tribunal reminded the Claimant there had been the same difficulty with her questions in the morning also. Regular breaks were taken.

[151]The Claimant also spoke about her health difficulties in the course of making her closing submissions. She said she had not been able to prepare as she would Case Number: 3323750/2017 33 have wished and had issues in her personal life to contend with. Despite this she spoke energetically and at length, going past the 45 minutes we had asked the parties to confine themselves to. She went through the discrimination schedule and beyond. The Claimant had and took the opportunity to make the points she wished, very fully.

[152]The availability of the Respondent’s witnesses was limited, in particular as a result of other commitments, such as urgent court hearings for their clients or their own childcare commitments. As set out above, the commencement of the witness evidence was delayed from that which would originally have been anticipated, by the need for the lengthy preliminary applications to be determined. In some instances, this necessitated halting the cross-examination of a witness at the end of a day, then starting with another witness the next day, only to return to the Claimant’s cross examination of the original witness at a later point. The Claimant was very accommodating and flexible in this regard, raising no objection. We were grateful for her assistance and cooperation. When witnesses were resumed in this way, the Judge began by reading from his own note of the last few questions and answers we had heard from that witness, so as orientate the Claimant and assist with her finding the correct point in her own notes. We were struck by the competence with which the Claimant was able to pick up her thread from where she left off following the interposing of a witness. This is consistent with our observations of her ability to conduct the proceedings as noted above. Facts Witness Evidence

Facts

[153]We frequently found it difficult to understand and attach weight to the Claimant's evidence. Her responses in cross examination and when the tribunal made enquiries of her often failed to address the question asked. On several occasions, the tribunal pointed out the need to focus on the specific question, rather than merely saying what she wished to, in general terms. We were satisfied the Claimant did understand the direction given but did not always follow it. By way of example, the claimant was referred to various emails in which her managers raised concerns with her about matters of conduct or performance. She was asked whether she agreed the correspondence contained criticism of her. Rather than accepting it did or volunteering a different way in which the text could be read, she insisted on seeking to explain and justify the conduct or behaviour referred to. The tribunal clarified with the Claimant that she understood the difference between the fact of a criticism being made on the one hand and on the other, whether the criticism was justified, which she said she did. Despite there being no lack of understanding on her part, the Claimant continued to avoid providing a direct answer when the question invited her to acknowledge that her managers had made her aware of their concerns. At other times the Claimant's oral evidence was difficult to follow or capture because she would begin talking about one thing and then without completing her sentence, move on to something else. Convoluted answers were frequent when the Claimant was taken to a document that was inconsistent with her case or she was faced with a factual proposition it was difficult, reasonably, to disagree with. We concluded this pattern was not a random one but rather Case Number: 3323750/2017 34 indicative of a tendency toward obfuscation. Essentially, she refused to acknowledge the evidence which was inconsistent with her position.

[154]We were satisfied that all of the Respondent’s witnesses were doing their best to give an honest recollection of events, albeit they frequently found this difficult because so much time had passed and especially where they did not have notes or some other contemporaneous document to refer to. The Claimant suggested this was suspicious and it was very convenient (i.e. for the Respondent) they were able to recall some things and not others. We did not find there was anything suspicious in the way the evidence came out, on the contrary these difficulties were entirely predictable, given the passage of time and the fact that the Claimant was now pursuing a whole raft of discrimination allegations, which she did not raise at the time. Mubashra Khan became upset whilst giving her evidence and being taken back to what we accept was a difficult time, earlier in her career, when she was working with the Claimant. The Claimant accused her of shedding ‘crocodile tears’. We did not agree. We were quite satisfied Mrs Khan’s distress was genuine. She also answered the questions asked of her in a direct and straight-froward way. We were satisfied by the evidence Farah Khan gave. Despite hostile questioning from the Claimant, in both content and tone, she remained calm and gave factual answers which addressed what she had been asked. She often gave full reasoned answers, which the Claimant disagreed with, rather than a simple ‘yes’ or ‘no’. This did not mean, as the Claimant frequently suggested, that Ms Khan was not responding to the question. Mr Bruce’s was careful, considered and comprehensive in answering the Claimant’s questions about the appeal process, frequently referring her to passages from his lengthy written decision, which dealt with these matters. Notably, the Claimant did not put the central proposition to him, namely that he turned down her appeal because in one paragraph of her lengthy grounds of appeal she made an allegation of race discrimination. This despite the Tribunal reminding the Claimant that her complaint against Mr Bruce was victimisation, urging her to make sure she asked her most important questions (somewhat unhelpfully, the Claimant said all her questions were equally important) and allowing her to continue beyond 3 ½ hours in cross-examination (when that time should have included Tribunal questions and re-examination).

[155]The Claimant made no allegations of discrimination against Mrs Parmar or Mr Raindi. Nonetheless, there was still a great deal of hostility in the Claimant’s questions of them. We were satisfied their answers were on point and it was apparent they were seeking to assist the Tribunal. Only Mrs Parmar and Mr Bruce were still employed by the Respondent, the other witnesses had to make arrangements with their current employers to attend this hearing and give evidence, which necessitated fitting it around other commitments they had.

Background

[156]The Claimant obtained her LLB in 2007 and passed the Legal Practice Course (the Solicitors’ academic qualification) in 2009. She did not, however, obtain a training contract. She has worked in law firms for a number of years as a paralegal or case worker.

[157]The Respondent is a large regional law firm, with several offices. Case Number: 3323750/2017 35

[158]On 19 July 2016, the Claimant applied for the position of Criminal Trainee Solicitor with the Respondent. Her covering letter referred to applying for family law injunctions in forced marriage cases, divorce and private children’s proceedings. She set out more than 3 years of experience of county court advocacy “on a daily basis” in landlord and tenant cases. She explained that she wished to become a solicitor advocate.

[159]The Claimant was interviewed by Krina Parmar, a Director of the Respondent, on whom she created a very good impression. She was offered employment, not in crime but rather in the family and childcare team and on the basis:159.1 She would be taken on as a case worker, initially;

159.2 Her employment would be subject to a 3-month probationary period;

159.3 If she passed her probation, then she would be offered a solicitor’s training contract.

[160]The agreed contractual terms included:: Unless it is otherwise stated in your Offer Letter, the first six months of your employment will be treated as a probation period (“the Probation Period”). After successful completion of your probation you will be formally notified and your employment shall continue unless it is terminated earlier (by either party) in accordance with the terms of this agreement The Company reserves the right to extend your probation period as deemed reasonably necessary

[161]The above term was amended by the Claimant’s offer letter, to the extent that in her case the probation period was reduced to 3 months, which reflected the good impression she had created in Mrs Parmar. Employment

[162]The Claimant joined the Respondent on 4 August 2016. She underwent an induction, along with other new starters. In the family and childcare department, she was working alongside Farah Khan. Ms Khan had been a case worker with the Respondent since March 2015 and in September 2016 she became a trainee solicitor. Also in September 2016, Mubashra Khan joined the Respondent’s family and childcare team. Mrs Khan was a qualified solicitor and joined in that capacity. She became the Claimant’s supervisor. Within the same department were David Cooper, a senior solicitor, and Sophie Rayment, another case worker. Mr Cooper supervised Ms Rayment. Working in the same area of law, but at different regional offices much of the time, were Mrs Parmar and Jasbir Raindi, both being directors.

[163]The distinction between qualified and unqualified staff is a most important one in this professional context, which is a factor that did not much feature in the Claimant’s thinking. A solicitor, pursuant to their professional obligations, is directly responsible for the conduct of their client’s case. Whilst caseworkers, or trainees may carry out work, this must be done under the supervision of the solicitor. A caseworker or trainee cannot conduct litigation in their own right. Any steps taken, including any missteps or negligence, will be treated as done by the Case Number: 3323750/2017 36 supervising solicitor. As several of the Respondent’s witnesses told the Tribunal, it was their practicing certificate which was at stake if things went wrong. It is, therefore, entirely understandable that solicitors would want to approve the work done on their cases and ensure this met the necessary standard, which it is their individual responsibility to determine.

[164]In August 2016, Farah Khan realised that a case which had recently been allocated to the Claimant was a matter she had previously been working on. Furthermore, this was a highly complex child sexual abuse case with 12 different parties to it. Ms Khan spoke to Mrs Parmar about it, suggesting the case be reallocated back to her. Mrs Parmar acted on this and switched the case back to Ms Khan.

[165]From September 2016, work was allocated to the Claimant primarily by Mubashra Khan, who became her supervisor then. From time to time other solicitors, such as Mrs Parmar, Mr Cooper or Mr Raindi might also ask the Claimant to do work for them. Farah Khan had no authority to allocate work to Claimant or anyone else, rather she too would be allocated work by Mubashra Khan, or other solicitors in the department.

[166]The Claimant had a good opinion of herself and a low opinion of many others she worked with at the Respondent, especially Farah Khan. The Claimant’s evidence and many of the contemporaneous documents show what she thought about colleagues. The same was also reflected in many of her contributions during this hearing. By way of example, one question asked in crossexamination of Ms Khan included the proposition that the Claimant was “more skilled, more qualified, more experienced, sharper and more intelligent than you”. The Claimant made disparaging comments about all of the Respondent’s witnesses and some others she had worked with in the firm’s family and childcare department.

[167]Whilst the Claimant had some prior experience of private family matters, she had little or none with respect to public childcare. Public childcare work is very different from private cases. This will frequently involve children being removed from their parents as a result of concerns about the adequacy of care, or even abuse. Applications and court hearings often take place at speed, with great urgency. The approach of the Respondent to allocating the Claimant work was a gradual one, starting her with the simpler tasks to see how she got on with these, before entrusting her with more difficult work. Although this was undoubtedly a reasonable approach, the Claimant rejected it. In her view she was very experienced in the law and her lack of experience in public childcare did not matter.

[168]On 7 September 2016, Mrs Parmar invited the Claimant to a first probation review meeting. The Claimant’s email in reply included: I’m a competitive person and I liked to be challenged and thrown into the deep end which I am not. I'm having work taken away from me because I'm told I'm inexperienced which I find unacceptable. With all due respect it's hardly rocket science that I can't do any of the work for childcare. With a bit of assistance I'll be able to handle it and quickly work independently. […] Case Number: 3323750/2017 37 The way I am working at the moment is at the level of a work experience student and I have much more than that to offer. I have amazing skills and can really work well for you i know about good client care and building a trusting relationship with clients bringing further referrals that way. I want to utilise my skills and develop more. I need to exceed my targets and aim for 200% to be able to achieve beyond that, be it in probation or thereafter. I met the new solicitor today and she seems really helpful and I'm sure she'll help in increasing my workload whilst I don't mind having an administrator role I would like more responsibility too. I'm happy to put the extra time in.

[169]We pause to note the new solicitor referred to here is Mubashra Khan and it is, therefore, apparent that the Claimant’s concerns about work allocation predated Mrs Khan becoming her supervisor.

[170]Mrs Parmar replied to the Claimant on 19 September 2016 in the following terms: As you are aware when you started with the firm the solicitor had not yet started. She has now started and has a full caseload of ten care cases. She has been advised that she needs to share the same between yourself and Farah, which she has agreed to do. You will now be assisting her with the same. I am hopeful that this will have a positive impact on your training and your work load. Although I appreciate you may have done some work in family before, you are at this stage not qualified staff and are therefore required to be supervised as are other staff closely. This is not only to protect the firm but also to ensure that you receive the best training possible. When you came to the firm I was not exactly sure of the knowledge and experience that you had in family and for that reason was restricting the form of work that I was giving you. Furthermore I was not based in the office and was therefore not able to supervise you in the manner I would have liked to. Although I appreciate the advice that you are required to provide is not “rocket science” in your view, I will not be doing anything to put the company at risk and therefore will make an assessment myself and now with the new solicitor to establish whether you are competent to undertake the work required. It is then up to us whether we allow you to undertake any such work. Although I will take your comments on board, I will not be dictated as to how to allocate work. I have to ensure on behalf of the firm that you are qualified to undertake the work being asked. I am all for throwing someone in the deep end, however my main priority is to protect the firm from any claims being made against us. I am happy to note the positive comments that have been made by clients. Case Number: 3323750/2017 38 Going forward the new solicitor will be able to keep a closer eye on this as she is based in the office and will oh able to allocate work to you in accordance with your competence. I have other caseworkers in a similar situation to you, who have been meeting their targets so there is no reason for you to not to meet the same in the way that you are working. As I have said if you need any work please contact Jas and myself

[171]It is quite clear from this email that Mrs Parmar did not think the Claimant’s representations had been appropriate. She told us (and we think this is in any event apparent from what she wrote) that the Claimant’s reference to the work not being “rocket science” was dismissive. She also did not appreciate being “dictated to” on the allocation of work. The Claimant’s was asked about this early email in the course of cross-examination. She denied the message included any explanation of why work was being allocated to her as it was. This answer was difficult to understand. The email gives a clear and reasoned explanation for work allocation. The Tribunal intervened to clarify the Claimant understood the difference between being given an explanation and whether she agreed with that and she said she did. This was one of many instances in which the Claimant’s evidence was contradicted by documentary evidence put in front of her and yet she would not recognise that.

[172]In the period prior to Mubashra Kahn joining, Mrs Parmar determined the allocation of work to the Claimant in the way she described in this email. Mr Issacs asked the Claimant to confirm she was not accusing Mrs Parmar of discrimination. The Claimant said “she’s Indian, Hindu, why would I? She’s British Indian, born and bred here”.

[173]The first probation review took place on 3 October 2016. In relation to personal qualities / skills, Mrs Parmar awarded mainly 4s (requires improvement). Mrs Parmar’s comments on the probation form included: Ability to carry out instructions KNP makes clear to Manjeet, she was not happy about tone of email and will not be dictated to in relation to work Understands job description (tasks, responsibilities, role within team) Same as above – she will have to undertake all tasks allocated to her […] Positive Attitude / Client Service skills Needs to speak to and communicate in a better manner […] Communication and interpersonal skills (with clients / 3rd parties & colleagues) Dis re emails + tone and how come across Case Number: 3323750/2017 39

[174]The Claimant was asked to agree that Mrs Parmar had explained she was not happy with the Claimant’s communication and how she interacted with others. The Claimant denied this, saying “she never said anything to me about talking to anyone”. The Claimant said that Mrs Parma looked down on her, as she was a director and the Claimant was only a case worker. The Claimant’s evidence on this was wholly unrealistic. It is quite clear Mrs Parmar had originally formed a very good impression of the Claimant, recommending her recruitment to the firm in glowing terms. Thereafter, Mrs Parmar had become concerned about the Claimant’s communication style and her objections to doing the work she was given. Mrs Parmar told her about these concerns at the probation review.

[175]Work continued to be allocated to the Claimant. Email traffic between Mrs Parmar and Mubashra Khan includes various cases the Claimant was tasked with doing work on. The Claimant did not dispute the genuineness of those emails or deny having been asked to take steps in the matters referred to.

[176]In October 2016, there was another occasion on which a case Farah Khan had been working on was passed to the Claimant. This happened because Mubashra Khan was on annual leave and Mr Raindi was covering her cases. As before, Ms Khan contacted Mr Raindi and explained it was a case she had been working on.

[177]On 11 October 2016, Mrs Parmar asked the Claimant to carry out an urgent task. This instruction was not acted for two weeks and only then as a result of Mrs Parmar chasing. Inconsistently, the Claimant complained of having a lack of work to do and at much the same time, being too busy to complete urgent tasks. We find that despite Mrs Parmar’s explanation, the Claimant was choosing not to do certain kinds of work, especially that which was not billable.

[178]Also on 11 October 2016, the Claimant sent a witness statement she had drafted to the client. The following day, Mrs Parmar asked the Claimant whether she had asked anyone (i.e. a solicitor) to look at this before it went out. The Claimant said she had not but would have sought approval from her or Mr Cooper before lodging it with the court. Mrs Parmar responded in the following terms: Hi Manjeet nothing should go out without a solicitor approving including all emails, letters etc . I have informed you of this before That statement needs amending and re drafting. Please see the precedent that Sabrina sends and re draft the statement Please ensure the sentences flow properly as they do not at the moment, please also ensure you do not use abrevation for words such as nfa Please also ensure proper grammar is uses so please do not use don’t and won't it should be do not and would not Please send me the re drafted statement to approve before it goes anywhere

[179]This exchange captures more than one ongoing issue. The Claimant thought about the cases as her own, rather than being the solicitor’s. The need for approval by a solicitor appeared to her a technicality rather than an important Case Number: 3323750/2017 40 matter of substance. There was also a problem with the quality of her written work, with respect to formatting, spelling, grammar and content. In her evidence at the Tribunal the Claimant dismissed this as merely being told to not to use “won’t” instead of “would not” and “don’t” instead of “do not”. The Claimant took the Respondent’s witnesses to typos in their own witness statements, such as where a word was missing, to support the proposition that everyone makes minor mistakes from time to time. This is, however, to sidestep the concerns raised with her on this occasion and many others. The faults with her written work were many and various, including the substantive content. Furthermore, it was the solicitor who was professionally responsible for what went out (whether to the client or the court) and they had to approve it. The individual solicitor was entitled to be satisfied with respect to both content and style.

[180]On 14 October 2016, the Claimant asked Mrs Parmar for confirmation of who her supervisor was. This enquiry should not have been necessary, as the position was clear. Mubashra Khan was supervising. The reply was an email to the department explaining the reporting lines. The Claimant worked under Mrs Khan. For certain limited purposes connected with the Legal Aid Agency, David Cooper (a panel solicitor) would review her work. Mrs Parmar and Mr Raindi would consider performance and conduct probation reviews.

[181]On 18 October 2016, Mr Raindi wrote to the Claimant in connection with a client care letter she had drafted. He had made tracked changes and asked her to pay careful attention to formatting, spelling and grammar. He also said he was “concerned by the Parental Responsibility issue, this has been commented on, please clarify”, which was a matter of substantive content.

[182]On 19 October 2016, Mrs Parmar amended a statement the Claimant had prepared saying: Hi please find attached my amended version. That was much better manjeet. Please be conscious when drafting statements not to use abbreviations such as didn't, wouldn’t etc as this is not very professional. Please also ensure that slang language is not used such as “split up" better work would be separation Please also ensure that there is some chronological order to the statement and that you mention specifically at least three key incidents

[183]Mrs Parmar’s email included positive words along with guidance on drafting.

[184]The Claimant’s position is that no concerns were raised with her about her performance or conduct during probation. This is not true. Mrs Parmar and Mr Raindi raised her communication style and quality of work on a number of occasions.

[185]On 26 October 2016, Farah Khan sent an email to the Claimant about a new client, saying she did not have capacity to take the matter on and asking if the Claimant could help. The email included a brief outline of the case. The email was copied to Mubashra Kahn and it would, of course, have been her decision whether to allocate this to the Claimant or not. The Claimant immediately refused to do the work. The email exchange between the Claimant and Mrs Khan included: Case Number: 3323750/2017 41 C Sorry if you don't mind, I do not want this case. I've got lots of cases I’m waiting to open and work on. Considering she doesn’t have the capacity to take this matter on, considering I have no work and I'm not barred from working on those cases, which I believe are under you. It would be your case please deal with it as you see fit. MK You told me yesterday that you need more work could you please take on the case. C I don't want to waste my time with preparing seeing clients and nothing comes of il. It affects my chargeables, III be doing all the preparation which is non chargeable work My chargeables are already low for this month. Three days I've more or less had nothing to do. I think you should give it to Farah, it was her client not mine and she should take it. I recall the stink that was caused when David wasn't given any work so why is it different for me. I think you're taking sides and I'm not happy with that. It'll be the same with […] don't know what she wants and I don't want to waste my time dealing with a case which wont go anywhere II don't have capacity to deal with the preliminaries. Sorry. MK I am not taking anyone’s side. You told me you do not have any work and I am now giving you work I am not sure what you expect me to do. This is a new matter and you will be able to charge for the work that you undertake so I am not sure what you mean. C Yes I do need the work. Why do I have to start on new matters. I've got 10 cases waiting to start. It is a waste of my time. Jas has already said for me to limit my time for client whom haven’t paid or aren’t with a certificate. Sorry I am not doing it. I went to Oxford to pick up two matters on a case and ppi cant be asked to attend that case or see to it, sol for people. Case Number: 3323750/2017 42 I am not doing the odd jobs any more. Filing, calling clients etc, going to doctors to collect papers. It affects my chargeables. It Is her case and she can do it. You can give her the […] case too. jt wont affect her she can work the extra hours. C I think you should consider giving her lives cases to me. I see that as fair considering she doesn't have sole conduct of the case. Its more than fair. She didn't even want to give me the work this morning. I didn’t get to his age in life with learning a thing or two about people and the work environment. C […] I'm just going to raise my concerns with Krina and Jas because its completely unfair, that I get the odd jobs and everyone else gets the bulk of the cases.

[186]The Claimant in this exchange repeated her contradictory approach, of complaining she should be allocated more work and at the same time refusing work, saying she already had lots of cases. She then proceeded to tell her supervisor how work should be allocated. This was done against a backdrop of Mrs Parmar having explained how work would be allocated, confirmed that Mubashra Khan was the Claimant’s supervisor, reminded her to be mindful of her communication and scoring her as requiring improvement in this.

[187]In terms of allocating work to the Claimant or Farah Khan, the Claimant expected an equal division of all cases, in particular those which were up and running where the work would be billable. Mubashra Khan’s approach to allocation, that of Mrs Parmar and the Respondent more generally, was not one of numerical equality, rather it was to allocate work on the basis of competence, capacity and continuity. The more difficult work would be given to the more experienced and most competent case workers. Capacity was important where urgent applications were being made, with potentially life-changing consequences for clients and their children. Continuity was also relevant. If a case worker had been on a case for some time, was familiar with it and / or had prior contact with the client, this would be a good reason to keep that same person on it.

[188]On 26 October 2016, the Claimant spoke with Mubashra Khan about work allocation. This followed what became a familiar pattern. The Claimant would say she wanted more work, by which she meant more cases of the sort Farah Khan was working on. Mrs Khan would reiterate the general approach to work allocation. During this particular conversation, Mubashra Khan suggested the Claimant was less willing to put in the “leg work” than Farah Khan. Having become exasperated by the Claimant’s approach to all of this, Mrs Khan halted their conversation abruptly because the Claimant was not listening to her. There was, however, no pointing of keys in the Claimant’s face. We noted the Case Number: 3323750/2017 43 Claimant’s recollection of this has evolved, from the appeal stage where she said, for the first time, that Mrs Khan had pointed fingers in the Claimant’s face, to the schedule where this became pointing keys in the Claimant’s face. For the sake of completeness, we do not find there was finger pointing either. The Claimant sent an email to Mrs Khan immediately following this discussion, in which she set out various complaints and referred to “leg work” several times. Any reference to finger or key pointing is notable by its absence. The Claimant would have complained about this at the time if it had occurred.

[189]In an email that day, the Claimant complained about work allocation to Mrs Parmar: In regards to your attendance tomorrow and the issues to raise in the office they are as follows I should be given a fair opportunity to earn my chargeables. I'm having work taken away from me or not being given it. I have asked several times for work. […] I'm sorry I do not accept that I lack the sufficient experience for the work given to me because I’m not advocating nor preparing particulars of the case. I believe I’m being judged on the standard of the team and I believe I have better skills that I have not been allowed to utilise.

[190]On 27 October 2016, Mubashra Kahn emailed Mrs Parmar and Mr Raindi, asking to speak with them about the Claimant. When they met that morning, Mrs Khan raised her concerns about the Claimant’s attitude and quality of work.

[191]The same day, Mrs Khan attempted to allocate work to the Claimant. In response to the first task set, the Claimant replied she would “try to do it before 31st”. She went on to suggest it should be allocated to Ms Rayment instead. Mrs Khan then attempted to allocate another task to the Claimant, who responded: Is the cost extension chargeable work? I haven’t worked on this case so I no nothing about it.

[192]Whilst they were in the office on 27 October 2016, Mrs Parmar and Mr Raindi also met with the Claimant. Surprisingly (as the position had been explained several times) the Claimant said she did not know who was allocating her work. She was reminded, again, that it was up to Mubashra Khan to decide how the work was allocated. The Claimant said she had no work for the previous two days, which position is difficult to reconcile with her replies to Mrs Khan that day. Mr Raindi told the Claimant the tone of her recent emails was inappropriate and her communication should be more professional. He went on to say that even at director level there was a need to carry out non-chargeable work. The Claimant said she didn’t mind doing non-chargeable work and the notes of this meeting include “I have never questioned MK”. This last point is not true, the Claimant repeatedly challenged and questioned Mrs Khan. We accept the Respondent’s note of this meeting fairly reflects what was said. Jasbir Raindi explained to MP the different levels of staff, that caseworker are set tasks by the Solicitors they work under, the Solicitors are monitored by supervisors, the supervisors monitored by the directors, Case Number: 3323750/2017 44 directors by the board and ultimately we are answerable to Shany. It is our (Jasbir Raindi and KP) job to ensure everyone in our teams meet/exceed their targets, this will help the fee earners when is comes to progression, salary increases etc. MP:• I am happy to undertake work for MK

• I am not being given work to do KP explained that demanding types of work was not appropriate and telling MK what she should or shouldn’t be given to do as work. MP:

• I will do all tasks set by KP

• MK is not splitting the work equally amongst F and me

• The emails I send come across differently to how I am in person KP: with the email issue I have told you already about the content and how they come across. You need to communicate with professionals carefully to not affect professional relationships. You need to re-think emails before they are sent, we are trying to support you but you need to understand that previously whilst you were given more flexibility DL has very tight regulation and you need to undertake tasks set to your level of competence. MP:

• The work should therefore be split equally by DL

• Well MK needs to be a more competent supervisor KP: you are still a caseworker, the Solicitor has responsibility for all work you undertake then the Directors. […] KP: it is up to MK how work is allocated and she shouldn't have to explain herself MP:

• I agree MK does not need to explain herself Jasblr Raindi: no respect is shown by MK for her position as supervisor to MP MP:

• MK has not supervising skills Jasbir Raindi paused MP at this point and asked her to reflect on the comment she had Just made and how that would be perceived in the same manner that her emails may not be perceived as she wished. Jasbir Raindi asked MP to express herself carefully as a lawyer would and bear in mind how such comments can be taken the wrong way. Case Number: 3323750/2017 45 KP: we will review the situation in 2 weeks, MP will need to do as she is asked […]

[193]We did not accept the Claimant’s note of this meeting (prepared much later in connection with her appeal against dismissal) as a reliable guide to the discussion, save to the extent that it is consistent with the Respondent’s note. Given this was not contemporaneous and the Claimant prepared it from memory, we think it most unlikely she could, reliably, prepare something akin to a transcript.

[194]In the morning on 1 November 2016, Mubashra Khan asked the Claimant to complete to a particular task in relation to a legal aid application. The Claimant said she was busy and suggested Mrs Khan ask someone else. This is another example of the Claimant refusing work because it was not to her liking, whilst complaining more generally that she did not have enough. Mrs Khan was frustrated and irritated by this response and the exchange became somewhat heated. In the course of this the Claimant said to Mrs Khan she would “leave the firm because of you”.

[195]On 2 November 2016, Mubashra Khan wrote to Mr Raindi, twice: Further to my meeting with yourself and Jas last week. I am not at happy as the way Manjeet speaks to me she is extremely rude and It is Impossible to actually have a conversation with her. Ozma from the Milton Keynes office was here yesterday and she also witnessed her awful attitude towards me, which is not nice and is creating a nasty working environment for me. She is very unprofessional and to be honest with you both I have tried working with her and I cannot put up with her 'attitude' towards me. She Is making me feel extremely uneasy a feeling I have never had in my working life to date and I should not have to be putting up with such behaviour. […] Thank you for gelling back to me. She is now very careful In what she put’s in her emails and Is more vocal now. It is so difficult to engage with her and It has got to the point I really do not want to speak to her, as she will just cause an argument in the presence of the entire office, which is not very nice. We all are busy and I just don’t need this additional stress from her. No doubt Ozma will fill you in.

[196]On 4 November 2016, Mr Raindi spoke with Ozma Hussain. She had recently visited the office where the Claimant was based and told him she felt there was a lot of tension. His notes of this (which accurately reflect what she said) were: […]• On 01.11.16 when OH spent the whole day in Luton and noted Mubashra Khan (“MK") being asked by MP to check a letter or email

• MK asked for some time before she would be able to consider the document(s), MP asked several times again before asking MK why MK was not checking the letter Case Number: 3323750/2017 46

• This left an uncomfortable atmosphere in the office

• MP accused MK of losing her temper, MP responded by saying ‘I’ll leave the firm because of you" directed to MK, MP then made a telephone call to someone else

• Farah Khan and Sophie Rayment told OH separately that MP creates a negative environment for everyone at the office as she is argumentative with David Cooper & MK, that MP lashes out at them

• OH felt there was a bad atmosphere at the Luton office caused by MP, that MP is a loud mouth and the tension is caused by her.

[197]On 7 November 2016, Mrs Parmar spoke, separately, with Mr Cooper and Ms Rayment. Her notes of this (which accurately reflect what was said) were: [DC]• KNP raised with DC the issue of Manjeet and asked him if there was any feedback that he would like to give in relation to the issue as she had been made aware that he also had some trouble with her

• He stated that she was a trouble causer and was a real problem in the office

• He said that she had fallen out with Yvonne, Hannah and also Arouj and spoke to them in a manner that was not appropriate in front of the whole office

• DC stated that she had started arguments with him as well on several occasions in front of the office and was very aggressive to him

• In relation to work - DC stated that he had given her some things to do, however she needed a lot of guidance and her drafting was not of a very good quality

• He stated that he had heard her on the phone a few times and her telephone manner was not very good or the way that she spoke to clients

• He said that she was creating a negative impact in the office

• He states that MK has been left upset on several occasions in relation to the way in which Manjeet has spoken to her [SR]

• Whilst undertaking the probation review with Sophie, she stated that there were a number of issues that she wanted to raise with KNP in relation to Manjeet

• She stated that she is creating a really bad atmosphere in the office

• She said that she had been rude and aggressive to DC on several occasions and had made him feel really upset and would often tease him about issues Case Number: 3323750/2017 47

• She showed no respect towards him at all ♦ She stated she felt uncomfortable the way in which she would speak to MK in front of the office and again had no respect for her

• She would moan to herself and FK that they were getting all the good work and she was left with nothing

[198]The Claimant’s second probation review with Mrs Parmar also took place on 7 November 2016. Scores of 4 were given for client skills. The comments included timescales not being met and incorrect explanation of a process being given to a client. The Claimant also got mainly 4s for personal qualities / skills: Ability to carry out instructions Need to work on time limits> she also needs to learne to take on board the advioce that is given and not to continue challenging it at every aspect Understands job description (tasks, responsibilities, role within team) KNP stated that she still failes to undertake tasks that are given to her and keeps asking for work which is not simple consideration and letters. KNP makes clear that we will allocate her what work she is competent to undertake in our view and she cannot dictate what work she wants and what she does not […] Positive Attitude/Client service skills KNP discussed with her the indcidents that had happened with others in this office and she would hope that her conduct would improve and she would show senior sol some respect […] Communication &Interpersonal Skills (with clients/3rd parties & colleagues) KNP and Jas had a detailed meeting with Manjeet in relation to this issue and it appears that little improvident has been made to date. KNp stated that she should speak to someone in the way that she would like to be spoken to. this was a real area of concern for knp

[199]The probation review also included comments on the poor quality of the Claimant’s written work and telephone manner with clients.

[200]After the Claimant’s meeting, Mubashra Khan asked the Claimant about her training contract. Mrs Khan also had her own probation review the same day. During her meeting, Mrs Khan spoke of the difficult working relationship she had with the Claimant.

[201]In order to address the ongoing problem and whilst she was still at this office, Mrs Parmar convened an immediate meeting with both the Claimant and Mubashra Khan. Mrs Parmar explained there needed to be no negative Case Number: 3323750/2017 48 atmosphere and the Claimant had to be able to work for her supervising solicitor. The Claimant apologised and said it was nothing personal it was just she was concerned about the allocation of work. Mrs Parmar reminded the Claimant to be careful about how she treated Mrs Khan, who was a more senior member of staff.

[202]On 17 November 2016, Mrs Parmar wrote to the Claimant. She began by commenting positively on the joint meeting on 7 November 2016. She then summarised areas for improvement which had been discussed: KNP stated that MP needed to ensure that matters were done in the correct time frame. KNP provided you of examples of how this could be done• Clients were provided accurate information , as were Jas and I so that we could properly advise you ♦ When dealing with agencies we needed to make sure that we provided extra client care and that there were no complaints

• Undertake all work that is given to you regardless of what it is

• Communicate with others in a professional manner

• Be cautious of the use of emails and how they be come across to others - KNP gave you examples of you could rephrase things to be more approachable

• Improve on drafting and making yourself more familiar with the law and red book

• Undertake ex part advocacy

• The atmosphere in the office […] As I advised you by email yesterday I will be completing your next review as soon as I return from leave

complaints

[203]The Claimant could not, in light of all that had happened, believe that she had passed her probation, merely because 3 months had now elapsed. Multiple concerns had been raised with her and the email of 17 November 2016 told her there would be a further probation review. Necessarily, a decision would be made when that next review took place. Furthermore, the Claimant’s written contract provided she would be formally notified on the successful completion of her probation and that had not happened. Her evidence as the Tribunal was, after some equivocation, that she was not sure whether she had passed her probation. We find at the time she knew she had not done so.

[204]On 22 November 2016, Mubashra Khan instructed the Claimant to prepare a costs schedule. Having prepared a draft of this document and in the absence of Mrs Khan, the Claimant sent a copy of this to Mr Raindi and asked him to check it. He sent it back with some tracked changes and indicated adjustments Case Number: 3323750/2017 49 required. Mr Raindi had not done any work on the case and was unfamiliar with it. Necessarily, his comments were of a general nature.

[205]Early on 25 November 2016, Mubashra Khan, asked the Claimant to make some further amendments to the costs schedule. This was her case and she knew the detail. The Claimant refused saying it had already been approved by Mr Raindi. Mrs Khan said she would contact Mr Raindi. The exchange became heated and voices were raised. This was a clear example of the Claimant refusing to follow Mrs Khan’s reasonable instructions. She sought to use Mr Raindi’s comments on an earlier draft as a justification for this.

[206]There was then protracted email traffic and an argument in person. The email exchange, with Mrs Khan, Mr Raindi and the Claimant, included: MK to JR 09.50 I hope you’re well and sorry for sending you this email as I am just furious at the moment! I understand that Manjeet liaised with you regarding a schedule of costs yesterday. I have told her to make the attached amendments but she is refusing to do so as you have approved it and she has just had an argument. To be honest I have tried very hard working with her and I am sorry but I cannot work with her. I have just about had enough of her attitude! In relation to the schedule of costs we first need to send the same to the Respondent to approve and if not we will need to send it the Court for a detailed assessment. We need to justify our costs and as the schedule stands t does not and I am not content sending it to the Court or the Respondent. JR to MK 09.52 I did approve the schedule but obviously it needs the Solicitor's input too as I have not worked on the file I shall direct her to make the amendments and remind her to follow your instructions as I can only give objective guidance JR to C 09.58 1. Make the adjustments as sought by Mubashra this morning by 12pm, once done Mubashra will approve before giving further direction about where to send the document and what to do; 2. I gave you objective guidance in respect of costs schedules on the basis your supervisor and lead Solicitor were not available; 3. I have not worked on this file, as such the lead Solicitor always has final say about such items and what needs to be done such as amendments etc. C to JR 11.23 Case Number: 3323750/2017 50 Mubashra said to change it, I simply said that Jas has approved it and this is his precedent. JR to C 11.44 It is not my precedent, it was guidance on the basis your Solicitor and supervisor were not available. Precedents must be tailored to client's needs, I do not know the file. Make the changes Mubashra has asked for, I want to see these by 12pm as per my earlier email to you timed today at 09:58am. C to JR 11.46 I'm sorry but that is an unreasonable demand, it 11.44am, I did what I can without the solicitor present and I am being penalised for that. Mubashra wasn't here so what could 1 do? It's a large file and will take me best part of the day at least. You said it was good to go so I took it as good to go as a director.

[207]During that morning whilst the Claimant was refusing to amend the schedule, tension in the office built up. At one stage a client meeting was due to take place. The Claimant appeared to believe this was her client and she was getting ready to attend the conference. Mrs Khan told the Claimant, Farah Khan would go to see this client as she had worked on the case previously. The Claimant disagreed with the instruction and there was another heated argument. During this exchange, Mrs Khan lost her temper momentarily and told the Claimant to “shut the fuck up”. Immediately thereafter, Mrs Khan realised that she should not have said what she did and contacted Mr Raindi by phone. He made a note of their conversation, which we accept accurately reflects what was said: She had to leave the office as she was very upset She had been wound up all morning by manjeet and had told her to shut the fuck up before mubashra walked out There was a dispute over the drafting of a schedule that I had approved for manjeet but mubashra had asked her to adjust it, manjeet had refused saying that as I had approved it the document did not need changing Mubashra was told by me to take as much time as she needed for her lunch and a break right now to settle as she was quite upset when speaking to me Mubashra told me she cannot work with Manjeet anymore that she would seek a transfer to another office or would even consider leaving the firm due to the distress being caused to her by manjeet I recapped what I had said in-emails about the issue I told mubashra to finish the day off and I would ensure work is done, that mubashra should issue tasks as usual to manjeet and if she refused to not argue with her but let me know and I would step in, I told her this to reduce risk of further conflict in the office between them Case Number: 3323750/2017 51 Mubashra told me she would try, I suggested she apologise for telling manjeet to shut up but mubashra told me she would not

[208]The email traffic continued: C to JR 11.56 I have just had Mubashra to tell me to 'shut the fuck up' Jas I’m sorry I don't know what is going on but she has been shouting at me since this morning over this schedule I was quite happy to do it as she wanted, I just didn't want to challenge you or question you over it so she started shouting at me in front of the whole office. And she wouldn’t let me go see a client, she wanted Farah to go down. Jas I don't know what to do. How can I resolve this. Jas I'm sorry but I really don't know what to do about this. JR to C 12.00 Manjeet you have been told by me twice now to make the amendments, they are not cumbersome and could have been done by now. I said it was good to go yes but I am not the Solicitor on the case I do not know the finer points, Mubashra Is entitled to ask for adjustments to be made as she sees fit. Now, for the third time:• Make the amendments as sought In response to the points in your email:

• This is not an unreasonable request

• You are not being penalised

• You are being asked to make adjustments as your Solicitor has asked you as your Solicitor's caseworker

• I asked for the changes to be made at 9:58am, at 11:23am I see your email about this-almost 1 % hours later

• If it will take more time take the remainder of the day if need be but complete the task as set today if not by 12pm JR to C 12.07 Manjeet, please complete the task as set, myself and Krina will address this issue, I will speak with Krina upon her return from leave about this otherwise if you want to take any other action please consider the HR policies. Mubashra wishes for certain caseworkers to undertake certain tasks that is her prerogative. I cannot comment any further about anything else at the moment. Case Number: 3323750/2017 52 C to JR 12.11 Of course I will do it just needed more time. C to JR 12.11 I have contacted HR but I don't know how I’m expected to work like this. I don’t know what is up with her this morning. Other members of the office had commented this morning that the why is she shouting at me & the way she was shouting at me was well out of order. In regards to her prerogative as I said I’m happy to complete the schedule I worked the entire case.

[209]Given everything that had happened, including the Claimant’s complaint about Mrs Khan having sworn at her, Mr Raindi decided to put in place holding measures. Discussions between the two protagonists were to be about work matters only. The Claimant would have to undertake any work allocated, without challenge or question. Mrs Khan was to provide a list of tasks and deadlines for him to monitor. Any dispute should be raised to Mr Cooper and then Mr Raindi.

[210]Mubshra Khan replied with a list of tasks and times.

[211]The Claimant emailed Mr Raindi saying that she did not understand why her work was being monitored and making other complaints. She also said she would assume that she could “swear back” at Mubashra Khan, who had a “large ego”. She made various points to the effect that Mrs Khan was given higher priority because she was a solicitor and the Claimant had minimal rights because she was a “caseworker”.

[212]Whilst the Claimant, at times, seemed very focused on status, there was no evidence to support a finding that the Respondent held caseworkers in low regard. We also note this case theory (to which she returned at the Tribunal on several occasions) about the reason for her treatment is inconsistent with the Claimant’s discrimination claims.

[213]Mr Raindi replied to the Claimant pointing out the measures he had put in place were an attempt to avoid further issues arising.

[214]Later on 25 November 2016, Ms Rayment sent an email to Mr Raindi with her recollection of events that day, set out at great length. Farah Khan also wrote to Mr Raindi, albeit more briefly.

[215]By an email of 26 November 2016, the Claimant complained she was a victim of bullying and Mubashra Khan had shouted at her. She said she was concerned “that rather than address my complaint each time, I am penalised and monitored instead”. As far as her earlier complaints were concerned, these focused on work allocation and the Respondent told her, repeatedly, that she had to do the work allocated to her by her supervisor and could not dictate to the Respondent in that regard. Her concerns were, therefore, addressed and she was given a clear response, albeit one she disagreed with. The kind of close monitoring Mr Raindi introduced on this occasion was a one-off, although the more general Case Number: 3323750/2017 53 ongoing assessment of her work was an integral part of her being in a probationary period.

[216]On 28 November 2016, Mubashra Khan wrote to Mrs Parmar, copied to Mr Raindi, to say she could no longer work with the Claimant: My working relationship with Manjeet has broken down and I refuse to work with her anymore. I feel I have placed my practising certificate at risk long enough whilst working with her and I feel I can no longer take the risk. I have worked very hard to be in the position I am and I will am not witling to take anymore risks, I fear if she continues the way she Is going She will probably place the company at risk one day. Manjeet does not listen to what she is being told to do and becomes argumentative and challenging. I have trained up Many paralegals and have never in my professional or in fact my personal life come across anyone like her. I no longer have the strength to put up with her volatile behaviour She does not have any respect for her seniors nor her colleagues in fact. I am really shocked by her behaviour and she behaves more like a 'naughty school child’. I now understand completely why she has nol yet been able to obtain a training contract as no firm is probably wiling to lake any risks by employing her. She was rude and argumentative towards David a few days before she was rude to me. I walked out of the office on Friday with the intention of not returning as I have just about had enough of her behaviour and it is now beginning to upset me. As a matter of courtesy I contacted Jas to tell him what had happened and Jas told me to take as long as I want out of the office but do return back to the office until your arrival. I respected what Jas had said to me and as much as I did not want to return I did what Jas said and await your response. Please let me know asap what you decide as I have Court hearings coming up and if you would like me to stay I need to start preparing for the same. I have one of Sarah Patel's hearings on Thursday which I will need to start preparing for immediately. However, If both you and Jas decide that you would like Manjeet to remain working with me then I will have no choice but to resign as my sanity is more important than working with her. Due to her behaviour I dislike coming into the Luton office and no one should be expected to feet this way. I do accept I should not have 'sworn' at her but she was continuously winding me up all day and on top of trying to concentrate on casework and with her in the background I told her on numerous occasions to be quiet but she would not listen and then she got the reaction she was seeking. I asked David to please intervene but she was not listening to anyone. I have tried very hard to work with her but she just makes it impossible and I really am not sure why she has this 'attitude' towards me. I regret to say the quality of her work is not up to a standard as it should be, (an example being the statement I forwarded to you) which I then had to take twice as long as amending. I now know for myself why Tariq refused to give her any challenging work as she is highly incompetent The only positive I will say she has is marketing but she has been employed as a caseworker not a marketer I will continue to work with her only up until close of business on Monday and Hook forward to hearing from you. Case Number: 3323750/2017 54 Whatever you and Jas decide I will completely respect your decision and I would like to say it has been a real pleasure working with you both. You have been a real support for me since being at DL and I have enjoyed working with you both and I am grateful for sharing your knowledge with me when I have approached you for guidance.

[217]Further to the breakdown in working relations between the Claimant and Mubashra Khan, on 28 November 2016 Mr Raindi changed the reporting line so the Claimant would now be working under Mr Cooper and a new solicitor, who was starting the following week. In reply the Claimant asked for some of the cases she had been working on to “carry on over to David”. This was, in substance, a request that some of Mrs Khan’s cases be transferred from her to Mr Cooper. Mr Raindi‘s reply included “files will remain with their respective solicitors”. The Claimant did not accept this. She wrote: Thanks for the clarity but I'd still rather take some of my cases. I don't think David has much work and these cases are cases I have picked up myself.

[218]Mr Raindi reiterated his decision: The files stay with their Solicitors, they will not be transferred by me to David or any other person.

[219]On 2 December 2016, Mr Raindi wrote to the Claimant about some drafting she had done, saying “I have just amended the doc heavily so please carefully consider the changes made for future similar tasks.”

[220]On 6 December 2016, Mrs Parmar wrote to the Claimant, saying she had not been in a position to discuss her recent problems any sooner due to being on annual leave and would do so in their upcoming probation review meeting. Mrs Parmar also proposed a mediation between the Claimant and Mubashra Khan.

[221]On 8 December 2016, the Claimant wrote to Mrs Parmar making various complaints about her treatment by Mubashra Khan, including being called a “bitch”. She referred to Farah Khan and Ms Rayment “smirking” and said they were all “colluding against [her]”. Work allocation was also raised.

[222]The Claimant’s third probation review meeting took place on 8 December 2016. Mrs Parmar conducted this, with Mr Cooper in attendance to take notes, which we find accurately reflect the discussion. The Claimant said she had been bullied by Mubashra Khan for some time. Mrs Parmar asked why she had not mentioned this before and the Claimant said “for the sake of my probation”. The Claimant also said that Mrs Khan had allocated “no” work to her. They discussed the costs schedule issue, involving Mr Raindi, and Mrs Khan swearing at the Claimant. Mr Parmar asked the Claimant why she kept on “challenging and challenging and challenging”. The Claimant said this was because Mr Raindi had approved the costs. Mrs Parmar referred to the Claimant asking Mrs Khan to allocate work to Ms Rayment rather than her, which she said was an example of the Claimant not wanting work. The Claimant denied this saying “No, I haven’t said no I won’t do it”. Mrs Parmar asked the Claimant how she knew people had been badmouthing her in the office (which she had recently complained about). The Claimant replied “Other people. I’m not saying who. I don’t think they’d want Case Number: 3323750/2017 55 me to say.” She said that Farah Khan and Ms Rayment had been “bitching about me” and she overheard Ms Khan referring to her as “a bitch”.

[223]The probation review was then paused. Following a short break, Mubashra Khan was invited to join the meeting, which became a mediation session. This was done in an attempt to address the Claimant’s complaints about Mrs Khan and also those being made in the opposite direction.

[224]The Claimant said she wanted to know why Farah Khan was being treated differently. Mrs Khan explained various factors which influenced work allocation. Tasks the Claimant been allocated were discussed, as was the quality of her work. At one point Mrs Parmar asked the Claimant to stop making “gestures”. There was a discussion about the costs schedule and this included Mrs Khan saying “I accept I swore. I should not have sworn at her.” The Claimant did not agree that she had been rude. Mrs Khan said she was being undermined. The need for the Claimant to accept her supervisor’s instructions was raised. The Claimant’s response to this point was to complain about Mrs Khan. The Claimant asked how long the meeting would last, as she had work to do. There was then an exchange in the following terms: MP then asked: “When did you asked me if I need assistance because I’m working out of hours?” MK: If you needed help why did you not ask me for assistance? MP: I don’t think this is an effective meeting. KP: This has gone on for ever. You can’t work with each other. MK: Absolutely. MP: I don’t see why I should work with someone who is rude to me. MK: I don’t appreciate being called a ?? liar/bully.

[225]The mediation stopped at this point. Following a short break, Mrs Parmar and Mr Cooper met with the Claimant again to continue the probation review. There was a discussion about various cases and tasks worked on by the Claimant. Mrs Parmar raised examples of the Claimant inappropriately challenging the solicitors allocating work to her. Mrs Parmar said she didn’t think there had been any improvement in the Claimant’s ability to follow instructions. Mrs Parmar moved onto interpersonal skills more generally, suggesting the Claimant should speak to others as she would wish to be spoken to. The Claimant said that people were “slagging [her] off” and Mrs Khan told her to “shut the fuck up”. Mrs Parmar drew the meeting to a close. She said she could not recommend the Claimant for a training contract.

[226]The Claimant’s probation review scores were almost exclusively 4s. The comments recorded multiple failings and a failure to improve. With respect to the chargeable hours (the subject of the Claimant’s constant complaints) she received a 3 (satisfactory) as she had done previously. Case Number: 3323750/2017 56

[227]By a letter of 8 December 2016, the Claimant was given one week’s notice of termination, based on her performance and conduct during the probationary period. At the Tribunal, the Claimant said no-one told her what the performance and conduct issues were. We do not agree. Whilst the termination letter did not set this out, concerns had repeatedly been drawn to her attention. That she did not agree with what was said against her does not mean she did not know what that was.

[228]The Claimant appealed against her dismissal, with detailed grounds over 6 pages, in a document dated 14 December 2016. This included her account of the history and various complaints of unfair treatment. At one point she alleged the Respondent’s approach was to treat her as a “slave”. Numbered point 6 on page 3 provided: The Employee further believes her mistreatment at the hands of her supervisor Mubashra Khan are discriminatory related, of race and religion. The Employee is known as a practicing Sikh.

[229]No basis for any treatment being because of race or religion was provided and her document immediately returned to more general complaints, including about Mrs Parmar.

[230]Jason Bruce, the Respondent’s Practice Manager, was tasked with determining the Claimant’s appeal. In correspondence the Claimant made various further complaints, including of dishonesty, along with intimating an intention to pursue tribunal proceedings and report matters to the SRA.

[231]The appeal hearing took place on 26 January 2017. Mr Bruce was accompanied by a notetaker and we find the notes accurately reflect and record what was said. The hearing last circa 5 ½ hours. The Claimant was permitted to argue her case, exhaustively. Mr Bruce asked her many questions, to better understand her argument. The Claimant said she had no complaint about the way the hearing was conducted and “liked” Mr Bruce. She changed her mind, however, when she received his decision.

[232]Mr Bruce asked the Claimant whether there were ever any meetings or emails raising her conduct, which elicited “not that I remember”. There was an extensive discussion around work allocation, the Claimant said she expected this to be fair. When Mr Bruce referred to correspondence from Mrs Parmar explaining the way in which cases would be allocated, the Claimant said there had been no investigation into the removal of cases from her. She expected work to be allocated “equally”. Asked about comments in the probation reviews on her ability to follow instructions, the Claimant said she did not remember Mrs Parmar saying this.

[233]Mr Bruce referred to Mrs Parmar saying the Claimant had no respect for her supervisor and the Claimant said this was because she said Mubashra Khan had no supervising skills. She also told Mr Bruce that Mrs Khan’s “knowledge is questionable”.

[234]Mr Bruce referred to the list of improvements required of the Claimant in Mrs Parmar’s email of 17 November 2016. She denied Mrs Parmar had said these Case Number: 3323750/2017 57 things to her. Mr Bruce pointed out they were in the email. As he started to work through the list, the Claimant repeated they had not been discussed and that she was annoyed by this email. Mr Bruce asked why she had not raised this. The Claimant said because Mrs Parmar was her director.

[235]Much of the correspondence was explored during the meeting. When it was put that she had not completed the costs schedule, the Claimant said “We were arguing until 2pm. I was upset, she was upset.” The Claimant accused Mubashra Khan of lying, when she said the Claimant refused to complete this work.

[236]Mr Bruce asked the Claimant whether in light of the emails and notes of meetings they had gone through, referring to different concerns, she thought these were matters of conduct. The Claimant’s reply was: No. KP or Jas did not raise issues with me. KP did not raise any issue with me reg[arding] anyone having issues with me. Clients love me. [The ]Employer is put to proof regarding issues of conduct. I want a definition of what conduct means. It was not defined to me.

[237]Mr Bruce asked the Claimant to explain why she was saying her treatment was race and religious discrimination. She responded by saying that she was of “Indian heritage” before going on to describe various others, including Mubashra Khan and Farah Khan as “Pakistani Muslim”. Asked if she believed this was why she was not getting work, she said “Yes, because I am Indian”. Asked why she had not raised a complaint, the Claimant said “because I did not want to raise or cause any difficulties” and if she had the firm would “sack me, like it happened now.” The Claimant also said she was a practicing Sikh. Mr Bruce asked how she believed this impacted on her treatment. The Claimant responded they were “narrow minded”, there were “historical issues” between India and Pakistan and there was no other Sikh in the office, other than Mr Raindi. Her allegation was based on a difference in race and religion and her dissatisfaction over work allocation.

[238]The Claimant referred to Mubashra Khan as being “a psycho”. Asked about her professional relationship with Mr Cooper, the Claimant said “I love him” and he would “tell me off about lots of things”. Asked whether a view could be taken of the Claimant’s drafting skills from the mistakes made, she said mistakes had been used against her, under the influence of Mubashra Khan.

[239]The Claimant wanted to send Mr Bruce further information and he agreed to receive this. Mr Bruce adjourned the appeal.

[240]The Claimant having spoken positively of her relationship with Mr Cooper, Mr Bruce approached him and asked for comments. The Claimant says this was a cynical exercise, as Mr Bruce already knew from other documents that Mr Cooper had negative views about her. We do not agree. The enquiry made by Case Number: 3323750/2017 58 Mr Bruce was part of him exploring this matter comprehensively. Mr Cooper’s comments were balanced, including some positives. He did, however, say much which tended to support the reasons for which she had been dismissed.

[241]Mr Bruce made detailed notes with respect to the Claimant’s appeal points. He extensively annotated the contemporaneous documents relevant to the Claimant’s appeal. He received and considered documents the Claimant produced for the appeal, including her 7-page commentary on the meeting of 27 October 2016, 4-page commentary on various emails and 22-page witness statement. He also went back though the notes of the appeal hearing. All of these documents include handwritten points in the margins, reflecting Mr Bruce’s work on and thoughts about this material as he went through it. We are satisfied that he was exceedingly careful and thorough in his approach to deciding the Claimant’s appeal.

[242]By a letter of 9 February 2017, Mr Bruce dismissed the appeal. Attached to this was his report, running to 26 pages. The report set out in considerable detail the material which had been taken into account, the findings he had made and reasoned conclusion with respect to the Claimant’s grounds of appeal. The decision was extensively (93 footnotes) cross-referenced to the documentary evidence. His reasons for dismissing the appeal included: I am satisfied that there is sufficient evidence to show that concerns in relation to MP's conduct had been raised with MP previously. She was advised by email as to what these concerns were, how she could redress them and when such concerns would be reviewed. If KP, as Director, was of the view that these concerns still remained at the point of the final probation review then she was reasonable to make the decision that she did. It certainly was not, as the grounds suggest, an ambush of concerns now being relied in for termination which had never been raised and understood previously. I have already found that MP's conduct towards her supervisor has been poor on a number of occasions as shown above. I am of the view that when considered cumulatively a decision to terminate her contract on conduct was a reasonable response to take. […] I am of the view that MP's financial chargeable hours performance was measured in the exactly the same manner as all other Duncan Lewis fee earners in accordance with the company's Performance Management Policy and Key Performance Indicators which are introduced to all staff during induction. MP's financial chargeable hours performance at the juncture of termination was relatively poor. Months 1-3 (until end October 2016) MP was receiving a rebate on her chargeable hours to take into account that she was new to the company. Nevertheless, inclusive of these rebates, by the end of November 2016, her FYD hours were 35% of desired target. […] Case Number: 3323750/2017 59 I find that she was treated equally in terms of work being allocated to her in accordance with capacity and her supervisor's views as to her competence on matters. If and where she was not allocated work which was subsequently allocated to others, I find that this was a decision based on competency and capacity. In relation to her treatment at hands of her supervisor, she refers heavily to the incident of 25th November 2016 but I have already found that I am of the view that MP's conduct during the 25th November 2016 incident was appalling. I am of the view that the matter had been handled fairly. I note that MK regretted this swearing and was later rebuked for this by her Director during her own probation review. […] Having considered all relevant evidence in this entire matter very closely, I cannot find any evidence, express or implicit, that MP , or any of her peers, were treated differently on account of their race, religion or any other characteristic. If and where there were any instances where FK and SR were treated differently in terms of how work was allocated to them I find that this was on the sole basis of their capacity, competency and experience in such matters dependent on the individual circumstances of each and every new client or case referral dependent on what needed to be done. I am of the view that this finding is evidenced throughout this investigation. I do not find that they were being treated differently for reasons of race or religion. Law Direct Discrimination

Law

[243]In the employment field and so far as material, section 39 of the Equality Act 2010 (“EqA”) provides: (2) An employer(a) (A) must not discriminate against an employee of A's

(b) (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 receiving any other benefit, facility or service;

(d) by subjecting B to any other detriment.

[244]As to the meaning of any other detriment, the employee must establish that by reason of the act or acts complained of a reasonable worker might take the view that they had thereby been disadvantaged in the circumstances in which they had thereafter to work. An unjustified sense of grievance cannot amount to a detriment for these purposes; see Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] IRLR 285

HL.

[245]EqA section 13(1) provides: Case Number: 3323750/2017 60 (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[246]The Tribunal must consider whether:246.1 the claimant received less favourable treatment;

246.2 if so, whether that was because of a protected characteristic.

[247]The question of whether there was less favourable treatment is answered by comparing the way in which the claimant was treated with the way in which others have been treated, or would have been treated. This exercise may involve looking at the treatment of a real comparator, or how a hypothetical comparator is likely to have been treated. In making this comparison we must be sure to compare like with like and particular to apply EqA section 23(1), which provides: (1) On a comparison of cases for the purposes of section 13, 14 or 19 there must be no material difference between the circumstances relating to each case.

[248]Evidence of the treatment of an actual comparator who is not close enough to satisfy the statutory definition may nonetheless by of assistance since it may help to inform a finding of how a hypothetical comparator would have been treated.

[249]As to whether any less favourable treatment was because of the claimant’s protected characteristic:249.1 direct evidence of discrimination is rare and it will frequently be necessary for employment tribunals to draw inferences from the primary facts;

249.2 if we are satisfied that the claimant’s protected characteristic was one of the reasons for the treatment complained of, it will be sufficient if that reason had a significant influence on the outcome, it need not be the sole or principal reason;

[250]In the absence of a real comparator and as an alternative to constructing a hypothetical comparator, in an appropriate case it may be sufficient to answer the “reason why” question - why did the claimant receive the treatment complained of.

[251]The burden of proof is addressed in EqA section 136, which so far as material provides: (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision occurred. Case Number: 3323750/2017 61

[252]When considering whether the claimant has satisfied the initial burden of proving facts from which a Tribunal might find discrimination, the Tribunal must consider the entirety of the evidence, whether adduced by the claimant or respondent; see Laing v Manchester City Council

[2006] IRLR 748

EAT.

[253]Furthermore, a simple difference in treatment as between the claimant and his comparators and a difference in protected characteristic will not suffice to shift the burden; see Madarassy v Nomura

[2007] IRLR 246

CA.

[254]The burden of proof provisions will add little in a case where the ET can make clear findings of a fact as to why an act or omission was done or not; see Martin v Devonshires Solicitors

[2011] IRLR 352

EAT, per Underhill P: 39. This submission betrays a misconception which has become all too common about the role of the burden of proof provisions in discrimination cases. Those provisions are important in circumstances where there is room for doubt as to the facts necessary to establish discrimination generally, that is, facts about the respondent’s motivation (in the sense defined above) because of the notorious difficulty of knowing what goes on inside someone else’s head “the devil himself knoweth not the mind of man” (per Brian CJ, YB 17 Ed IV f.1, pl. 2). But they have no bearing where the tribunal is in a position to make positive findings on the evidence one way or the other, and still less where there is no real dispute about the respondent’s motivation and what is in issue is its correct characterisation in law […] Harassment

[255]Insofar as material, EqA section 26 provides: (1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i)violating B's dignity, or (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B. […] (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a)the perception of B; (b)the other circumstances of the case; (c)whether it is reasonable for the conduct to have that effect.

[256]Whilst the unwanted conduct need not be done ‘on the grounds of’ or ‘because of”, in the sense of being causally linked to, a protected characteristic in order to Case Number: 3323750/2017 62 amount to harassment, the need for that conduct be ‘related to’ the protected characteristic does require a “connection or association” with that; see Regina (Equal Opportunities Commission) v Secretary of State for Trade and Industry

[2007] ICR 1234

QBD. Notwithstanding it was decided under the prior legislation including the formulation “on the grounds of”, the observations made by by the EAT in Nazir v Asim

[2010] ICR 1225

may still be of some relevance: 69 We wish to emphasise this last question. The provisions to which we have referred find their place in legislation concerned with equality. It is not the purpose of such legislation to address all forms of bullying or anti-social behaviour in the workplace. The legislation therefore does not prohibit all harassment, still less every argument or dispute in the workplace; it is concerned only with harassment which is related to a characteristic protected by equality law—such as a person’s race and gender.

[257]The EAT further considered the relevant causal test in Bakkali v Greater Manchester Buses (South) Ltd t/a Stage Coach Manchester:

UKEAT/0176/17/RN

; per Slade J: 31. […] Conduct can be “related to” a relevant characteristic even if it is not “because of” that characteristic. It is difficult to think of circumstances in which unwanted conduct on grounds of or because of a relevant protected characteristic would not be related to that protected characteristic of a claimant. However, “related to” such a characteristic includes a wider category of conduct. A decision on whether conduct is related to such a characteristic requires a broader enquiry. In my judgment the change in the statutory ingredients of harassment requires a more intense focus on the context of the offending words or behaviour. […] “the mental processes” of the alleged harasser will be relevant to the question of whether the conduct complained of was related to a protected characteristic of the Claimant […] However such evidence from the alleged perpetrator is not essential to the determination of the issue. A tribunal will determine the complaint on the material before it including evidence of the context in which the conduct complained of took place.

[258]In relation to the proscribed effect, although C’s perception must be taken into account, the test is not a subjective one satisfied merely because C thinks it is. The ET must reach a conclusion that the found conduct reasonably brought about the effect; see Richmond Pharmacology v Dhaliwal

[2009] IRLR 336

EAT.

[259]Guidance on the threshold for conduct satisfying the statutory definition was given by the EAT in Betsi Cadwaladr University Health Board v Hughes [2014] 2 WLUK 991; per Langstaff P:10. Next, it was pointed out by Elias LJ in the case of Grant v HM Land Registry

[2011] EWCA Civ 769

that the words “violating dignity”, “intimidating, hostile, degrading, humiliating, offensive” are significant words. As he said: “Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.” Case Number: 3323750/2017 63

11. Exactly the same point was made by Underhill P in Richmond Pharmacology at paragraph 22: “..not every racially slanted adverse comment or conduct may constitute the violation of a person's dignity. Dignity is not necessarily violated by things said or done which are trivial or transitory, particularly if it should have been clear that any offence was unintended. While it is very important that employers, and tribunals, are sensitive to the hurt that can be caused by racially offensive comments or conduct (or indeed comments or conduct on other grounds covered by the cognate legislation to which we have referred), it is also important not to encourage a culture of hypersensitivity or the imposition of legal liability in respect of every unfortunate phrase.”

12. We wholeheartedly agree. The word “violating” is a strong word. Offending against dignity, hurting it, is insufficient. “Violating” may be a word the strength of which is sometimes overlooked. The same might be said of the words “intimidating” etc. All look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence. Victimisation

[260]So far as material, EqA section 27 provides: Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

Conclusion

[261]We will consider the Claimant’s EqA claims in chronological order (in so far as this can be discerned).

[262]The earliest matter about which the Claimant now complains is alleged discrimination by Farah Khan. It is noteworthy, however, that the Claimant’s original claim comprised only complaints of discrimination against Mubashra Case Number: 3323750/2017 64 Khan. The decision to pursue Ms Khan, notwithstanding that was done with considerable vigour and animosity during this hearing, appears to have been an afterthought. Schedule 2, Allegation 1 - Aug 2016 [direct discrimination by FK] Farah Khan said she had a conversation with KP last night that ‘because you are not experienced enough that you shouldn't work on any of the cases and the Baker files is a big case, you won’t know what to do’. And confirmed again a few days later and she maliciously took the Claimants caseload away.

[263]The case in question was initially allocated to the Claimant by Mrs Parmar. It was a highly complex child sexual abuse matter, with 12 different parties. Farah Khan had worked on it previously and spoke to Mrs Parmar, suggesting it should be reallocated. Mrs Parmar acted on this and the case went back to Ms Khan. The actions of Ms Khan in this regard had nothing whatsoever to do with the Claimant’s race or religion, they were based solely on complexity of the case and Ms Khan’s prior knowledge of it. Furthermore, the decision to reallocate was made by Mrs Parmar and not Ms Khan.

[264]The alleged less favourable treatment did not occur and the claim fails.

[265]For the sake of completeness, however, we found that that the actions taken by Ms Khan in this matter had nothing whatsoever to do with race or religion. Schedule 2, Allegation 2 - Aug 2016 [direct discrimination by FK] FK told the Claimant that Peter Wusu is not a director, later the Claimant learnt from FK that he was.

[266]We are satisfied that Farah Khan did not say that Mr Wusu was not a director. This alleged less favourable treatment did not occur. The Claimant referred to this allegation in her appeal statement: The following day Farah informed me that Peter Wusu was not a director but he has been working at DL for around 14 years and he is close with the board and I should be careful around him to look as though I am doing work. I later am told by her he is a director and she denied the above conversation, I thought it was very malicious of her to tell me that he wasn't a director.

[267]The Claimant’s allegation is bizarre. Her suggestion appeared to be that by downplaying Mr Wusu’s status, she was being encouraged to misbehave in front of him. This is, however, inconsistent with the express warning she alleged within her account of this at the appeal stage. There is no reason whatsoever for Ms Khan to have misstated the position of Mr Wusu and we do find she said any of what is alleged.

[268]The alleged less favourable treatment did not occur and the claim fails. Case Number: 3323750/2017 65 Schedule 1, Allegation 1 - 07.09.16 [direct discrimination by MK] MK shunned an elderly male of Sikh attire, wearing a turban and a beard

[269]The Claimant’s evidence about this was vague and unsatisfactory. She made no complaint when it is alleged to have occurred. Mubashra Khan has no recollection and denies she would do such a thing. No reason for this behaviour has been advanced, save the Claimant asserts that Mrs Khan is, generally, hostile to Indian Sikhs. We are not satisfied Mrs Khan has such general hostility or that there was any shunning.

[270]The alleged less favourable treatment did not occur and the claim fails. Schedule 1, Allegation 2 – 09.09.16 [direct discrimination & harassment by MK] Comment ‘All Indian women marry white men’.

[271]The Claimant’s case is that Mubashra Khan said this to the Claimant, referring to Mrs Parmar. Mrs Khan denied the comment, saying she had no interest in Mrs Parmar’s domestic circumstances. We also noted that in the course of crossexamination, the Claimant was inconsistent about the date when this is alleged to have happened. She made no complaint about it at the time. Furthermore, to the extent that any witness before us had a tendency to pigeon-hole people by reference to their protected characteristics and make generalised assertions, it was the Claimant. We prefer Mrs Khan’s evidence.

[272]The alleged unwanted conduct or less favourable treatment did not occur and the claim fails. Schedule 2, Allegation 4 – throughout [harassment by FK] FK shared her caseload not with the Claimant but SR.

[273]The Claimant’s complaint about this is contrary to the evidence. It also reflects her refusal to accept the repeated and clear explanations given at the time about work allocation. Firstly, Ms Khan had no authority and did not in practice, allocate work. Such decisions were made by the solicitor who was responsible for the case. Secondly, work allocation was not based on numerical equality, rather the Respondent deliberately allocated less demanding cases to the Claimant to begin with and then, if she had dealt with that satisfactorily, the Respondent’s intention was to provide her with more challenging work. There were occasions on which Ms Rayment did work on the same cases as Ms Khan but this was at the direction of Mrs Parmar or another solicitor and not because Ms Khan decided it should be so. We accepted the evidence of the Respondent’s witnesses about the way in which work was allocated and reasons for this.

[274]The alleged unwanted conduct did not occur and the claim fails.

[275]For the sake of completeness, however, we found that that the allocation of work had nothing whatsoever to do with race or religion; it was not related to those protected characteristics. Case Number: 3323750/2017 66 Schedule 2, Allegation 5 - Oct 2016 [direct discrimination by FK] Whilst MK was on annual leave JR emailed the Claimant to work on tasks for case of MM, upon enquiring with FK, she said the task and case was for her. JR was informed the Claimant is not working on this case.

[276]This case is one that Farah Khan had been working on under the supervision of Mubashra Khan. When Mrs Khan was on holiday and Mr Raindi covering, he asked the Claimant to do some work on it. Ms Khan contacted Mr Raindi thinking a mistake had been made, as he did not know she was already familiar with the case.

[277]The treatment alleged – or at least something very similar to it – did occur. There was, however, nothing to suggest any connection with race or religion. Further and separately, we were satisfied by the evidence of Ms Khan and the reasons she acted as she did had nothing whatsoever to do with race or religion. The claim fails. Schedule 2, Allegation 6 – Oct 2016 [direct discrimination by FK] Before MK was on annual leave the case of [name] was allocated to the Claimant but upon issue, FK started the case and shared the case working with SR.

[278]This is another instance where Farah Khan had been working on a matter previously and sought to do so again. Whilst Ms Rayment may have worked on it too, this would have been at the direction of her supervising solicitor and not Ms Khan.

[279]Given the Ms Khan did not “share” any work with Ms Rayment, the alleged less favourable treatment did not occur and the claim fails.

[280]For the sake of completeness, however, we found that that the actions taken by Ms Khan on this case had nothing whatsoever to do with race or religion.

[281]Schedule 1, Allegation 4 - Oct 2016 [direct discrimination & harassment by MK] To client ‘So why didn’t you marry an apni?’

[282]We were told these words would be understood as “why didn’t you marry one of us?” There was no complaint from the Claimant about this at the time. Mrs Khan struck the Tribunal as thoughtful and professional in her approach. We think it unlikely she would have made this comment at all, let alone to a client, who may easily have been offended by it. We have no hesitation in rejecting the Claimant’s evidence about this as implausible. The remark was not made.

[283]The alleged unwanted conduct or less favourable treatment did not occur and the claim fails. Schedule 1, Allegation 6 – October 2016 [direct discrimination & harassment by MK] Made a comment about a Bangladeshi client, her mother in law slapped her ‘obviously she wasn’t Pakistani and she didn’t approve of her’. Case Number: 3323750/2017 67

[284]No context whatsoever was provided for this allegation until the Claimant gave evidence. The Claimant said she overheard Mubashra Khan talking about a case. When asked whether it appeared the alleged words, if said at all, would have amounted to Mrs Khan commenting on the motivation of a third party, she disagreed, saying that Mrs Khan was expressing approval for what happened and aiming her remarks at the Claimant.

[285]Mrs Khan denied making the comment. The Claimant did not complain about it at the time. There is no documentary evidence to corroborate anything such as this having been said. We think it unlikely Mrs Khan would have said this, especially if as is now alleged, it was a malicious comment aimed at the Claimant.

[286]The alleged unwanted conduct or less favourable treatment did not occur and the claim fails. Schedule 1, Allegation 7 – Oct 2016 [direct discrimination & harassment by MK] Mubashra Khan took annual leave for approximately 10 days and left the Claimant without any work.

[287]We do not accept there was any time when the Claimant was left without work. Mubashra Khan allocated cases to the Claimant when she was at work (i.e. not on leave). During October, when Mrs Khan was on leave, Mrs Parmar sent work through. We have already made findings about the way in which work was allocated generally and this applied in October as at other times. The Claimant switched between saying she had too little work, when she believed there was an attractive case that might be allocated, to saying she had too much work already, when she was being asked to do something she did not wish to. The Claimant wanted the cases Ms Khan was working on, those that were already up and running, on which all or most work done would be billable. The Claimant did not want to do unbillable work, notwithstanding it was expected of all feeearners. If the Claimant had required work she could have approached one of the directors. In cross-examination when this point was put, the Claimant answered that a competent director would know what work had been allocated (i.e. it ought not to be necessary for her to ask) and she had decided to spend 2 days “tidying up her desk”. She also said she had been put off from asking by Mrs Parmar’s email; we do not accept that. More likely, the Claimant had enough work already and / or feared that if she asked for more, that which came forth would not be to her liking. The Respondent’s diary system included new cases coming into the firm on a daily basis that all needed an initial follow-up, which the Claimant could have done. Such new cases were not, however, attractive to her, as there would be much unbillable preliminary work.

[288]The alleged unwanted conduct or less favourable treatment did not occur and the claim fails. Schedule 1, Allegation 8 – Oct 2016 [direct discrimination & harassment by MK] Upon her return she left the Claimant without work for a further 3 days.

[289]Whilst it does not appear that Mubashra Khan allocated any new case to the Claimant during the 3 days following her return from annual leave, this period Case Number: 3323750/2017 68 was no different from any other and work was allocated or not on the usual basis. Furthermore, as we have found, the Claimant always had work. Whether she wanted to do such work was another matter.

[290]The alleged unwanted conduct or less favourable treatment did not occur and the claim fails.

[291]For the sake of completeness, however, we found that that the actions taken by Mrs Khan in allocating work or not at this time, had nothing whatsoever to do with race or religion; it was not because of or related to those protected characteristics. Schedule 1, Allegation 5 - Aug to Nov 2016 [direct discrimination & harassment by MK] She allocated the Claimants work to Farah Khan & Sophie Raymont – She set the Claimant 4 tasks

[292]We do not accept the Claimant was only given 4 tasks by Mubashra Khan during the entire period. She was given far more work than this.

[293]The alleged treatment or unwanted conduct was not done and the claim fails.

[294]We note in the Claimant’s particulars of claim there is a complaint that Mubashra Khan gave her 4 tasks on one day, with a view to setting her up to fail (i.e. too much work). As part of the extensive case management of the Claimant’s claims she was required to provide information in the form of a schedule. The 4 tasks in one day, set up to fail complaint, was not included in either of her two schedules. As a result, Mrs Khan has not addressed this in her witness statement. Nor did the Claimant put such a case in cross-examination. On the contrary, the challenge put to Mrs Khan was that she had “only” given 4 cases to the Claimant. The complaint appears to have morphed from 4 tasks in 1 day being too much, to 4 cases in total being allocated throughout her employment, which was too little. It may be that the Claimant was set 4 tasks on one day, we are not in a position to say one way or the other. We are, however, satisfied there was no occasion when Mrs Khan directed the Claimant to complete any task with a view to setting her up to fail. Nor was the allocation of work at all because of or related to race or religion. Schedule 1, Allegation 9 – 26.10.16 [direct discrimination & harassment by MK] The Claimant held a meeting with Mubashra Khan about the lack of work pointing her keys in the Claimants face she told her to ‘put the leg work into picking up cases like Farah Khan has’.

[295]As set out above, we found the key pointing did not occur. The leg work comment – or something similar – was said and to that extent only the alleged treatment or unwanted conduct did occur.

[296]The leg work comment had nothing whatsoever with race or religion. Mrs Khan said this because she was exasperated by the Claimant’s attitude and did think her work ethic poor in comparison to that of Ms Khan. It was not said because of race or religion nor did it relate to race or religion. Accordingly, the claim fails. Case Number: 3323750/2017 69 Schedule 1, Allegation 3 – 27.10.16 [direct discrimination & harassment by MK] ‘I don’t want to work for them 3 In…idiots’

[297]The Claimant’s evidence was that she heard part of a word “In…”. The inference she invited is that the full word was “Indian”. Mubashra Khan denied having ever said this.

[298]This is a vague allegation. There was no contemporaneous complaint. There is nothing to corroborate the Claimant’s evidence. She is not even certain what she heard. Having listened to the way in which Mubashra Khan and the Claimant express themselves, we do not think these words sound much like a formulation Mrs Khan would use. We prefer the evidence of Mrs Khan. We think it most unlikely that she would make a remark of the sort which is alleged.

[299]The alleged unwanted conduct or less favourable treatment did not occur and the claim fails. Schedule 1, Allegation 10 – 27.10.16 [direct discrimination & harassment by MK] Email 07.30hrs to Jasbir Raindi and Krina Parmar, she wanted to raise concerns about the Claimant and specifically requests the Claimant be removed as her caseworker

[300]The email in question did not say Mubashara Khan wished to raise concerns about the Claimant and nor did it request she be removed as her case worker.

[301]The alleged less favourable treatment or unwanted conduct was not done and the claim fails.

[302]For the sake of completeness, whilst this email was sent by Mrs Khan with the intention of raising her concerns about the Claimant, this had nothing whatsoever to do with race or religion; it was not because of or related to those protected characteristics. Mrs Khan was genuinely and reasonably, concerned about the Claimant’s attitude toward her and the work she was being asked to do. Schedule 1, Allegation 11 – 27.10.16 [direct discrimination & harassment by MK] Meeting with Krina Parmar & Jasbir Raindi, she made a false complaint to them about the Claimant, resulting in Krina Parmar and Jasbir Raindi chastising the Claimant and Krina Parmar telling her, ‘Get back up stairs and mend the relationship she had ruined’

[303]This is an allegation of discrimination or harassment by Mubashra Khan. It was not alleged that Mrs Parmar or Mr Raindi did anything discriminatory. Whilst this allegation refers to the Claimant’s account of the meeting she had with the two directors, that is put forward as the consequence of the earlier discrimination by Mrs Khan, which is said to be the making by her of a “false complaint”.

[304]Mrs Khan did not make a “false complaint”, she made a genuine complaint about the Claimant, in that she raised concerns she believed to be true. The alleged unwanted conduct or treatment was not done. Accordingly, the claim fails. Case Number: 3323750/2017 70

[305]Both contemporaneously and during the Tribunal hearing the Claimant, at times, seemed to struggle with the idea that anyone could hold a lesser opinion of her than she did herself. We are quite satisfied that Mrs Khan was genuinely and reasonably, concerned by the way the Claimant was conducting herself at work. Finding this a very difficult situation to manage, she wished to speak to her own seniors about it. That which Mrs Khan told her managers had nothing whatsoever to do with race or religion; it was not because of or related to those protected characteristics. Schedule 1, Allegation 12 - 01.11.16 [direct discrimination & harassment by MK] Mubashra Khan referred to the Claimant as a ‘bitch’

[306]Mubashra Khan denied saying this and Farah Khan, who was alleged to have been present, also said it did not happen. On one occasion when Mrs Khan did swear, she recognised this was not appropriate and reported the matter to her superiors. Whilst the Claimant frequently demonstrated a tendency to use loose or excessive language there was little evidence Mrs Khan doing so, save on the one occasion referred to. We prefer the evidence of the Respondent’s witnesses.

[307]The alleged treatment or unwanted conduct was not done and the claim fails.

[308]For the sake of completeness, whilst Mrs Khan’s view of the Claimant and comments about her became more negative over time, this had nothing whatsoever to do with race or religion; it was not because of or related to those protected characteristics. Rather, it was because of the latter’s obstructive and uncooperative behaviour.

[309]Schedule 2, Allegation 8 - Nov 2016 [harassment by FK] FK, MK were talking about the Claimant in the canteen, MK refers to her as a bitch, with SR returning to the table

[310]There is no complaint against Farah Khan. Being present when a discriminatory act is done, without more, does not make a person the perpetrator of it. In any event we have found it was not done. This claim fails. Schedule 1, Allegation 13 - 01.11.16 [direct discrimination & harassment by MK] Mubashra Khan attempted to throw legal aid papers in the Claimants face, the Claimant said to her, ’I will leave this job because of you’

[311]This is another allegation which appears to have evolved over time. In her appeal statement the Claimant said “she attempted to throw papers towards me”, whereas now it is said the attempt was to throw papers in her face. We pause to note that this tendency for the Claimant’s recollection of the incidents she is complaining about to vary over time does not give us confidence in her as an accurate historian. We find this attempted throwing of papers in her face did not occur.

[312]The alleged treatment or unwanted conduct was not done and the claim fails. Case Number: 3323750/2017 71 Schedule 1, Allegation 14 - 02.11.16 [direct discrimination & harassment by MK] Email 10.31hrs to Jasbir Raindi and Krina Parmar, ‘Further to my meeting with yourself and Jas last week. I am not at all happy as the way Manjeet speaks to me she is extremely rude and it is impossible to actually have a conversation with her. Ozma from the Milton Keynes office was here yesterday and she also witnessed her awful attitude towards me, which is not nice and is creating a nasty working environment for me. She is very unprofessional and to be honest with you both I have tried working with her and I cannot put up with her ‘attitude’ towards me. She is making me feel extremely uneasy a feeling I have never had in my working life to date and I should not have to putting up with such behaviour’

[313]This email was sent. The treatment or unwanted conduct occurred. This was not, however, related to or because of race or religion. Mubashra Khan wrote in these terms because they genuinely reflected how she felt about working with the Claimant. This did not, at all, stem from race or religion; it was not because of or related to those protected characteristics. Rather, it was the product of the Claimant’s workplace behaviours. Accordingly, the claim fails. Schedule 1, Allegation 15 – 02.11.16 [direct discrimination & harassment by MK] Email 12.46 hrs to Jasbir Raindi ‘She is now very careful in what she puts in her emails and is more vocal now. It is so difficult to engage with her and has got to the point where I really do not want to speak to her, as she will just cause an argument in the presence of the entire office, which is not very nice. We all are busy and I just don’t need this additional stress from her. No doubt Ozma will fill you in. Thank you for your help, I appreciate it’.

[314]This email was sent. The treatment or unwanted conduct occurred. This was not, however, related to or because of race or religion. Once again, Mubashra Khan wrote in these terms because they genuinely reflected how she felt about working with the Claimant. This did not, at all, stem from race or religion; it was not because of or related to those protected characteristics. Rather, it was the product of the Claimant’s workplace behaviours. Accordingly, the claim fails. Schedule 2, Allegation 7 - Nov 2016 [harassment by FK & SR] With the support of SR FK spread false and malicious rumours about the Claimant as per the statement of OH.

[315]This allegation refers to the note that Mr Raindi made of a discussion with Ozma Hussain. The suggestion is that Farah Khan and Ms Rayment spread false and malicious rumours about the Claimant, which Ms Hussain has then repeated to Mr Raindi.

[316]Mr Raindi’s note could not be clearer. It plainly captures Ms Hussain’s observations of her day working in this office. We are reinforced in this by noting that where Ms Hussain did repeat what others had said, she made this clear and Mr Randi recorded it. In cross-examination, it was put to the Claimant that the most natural reading of this note was that it genuinely reflected Ms Hussain’s own view. The Claimant did not agree. Once again the Claimant would not accept that others may have a different view of her to that which she holds. Case Number: 3323750/2017 72

[317]Furthermore, there is no evidence of Ms Khan or Ms Rayment spreading “false or malicious rumours”. What happened was that a very considerable number of the Claimant’s colleagues, had concerns about her conduct and found her difficult to work with. To the extent they expressed that concern, this genuinely reflected how they felt about the situation.

[318]The alleged treatment or unwanted conduct did not occur and the claim fails.

[319]For the sake of completeness, there is nothing to suggest that in Ms Khan or Ms Rayment expressing their concerns about the Claimant, this had anything whatsoever to do with race or religion; it was not related to those protected characteristics. Schedule 1, Allegation 17 – 07.11.16 [direct discrimination & harassment by MK] Upon the Claimants return to the office after her probation review, MK asked the Claimant, ‘So what’s happening with your training contract?’

[320]We think this was said. Although Mubashra Khan did not recall it, she said it would be a normal question to ask. To that extent, the unwanted conduct or treatment alleged was done.

[321]The question was asked in order to find out whether the Claimant was being offered a training contract. In cross-examination, Mrs Khan said she hoped the Claimant got a contract with the firm. We think that hope was of the sort that involves not wishing ill upon others, even those you find difficult or objectionable. We do not think Mrs Khan wanted to continue working with the Claimant herself. None of this, however, had anything whatsoever to do with race or religion; it was not because of or related to those protected characteristics. Rather, it was the product of the Claimant’s workplace behaviours. The question was not asked because of race or religion, to any extent at all. Accordingly, the claim fails. Schedule 1, Allegation 18 – 07.11.16 [direct discrimination & harassment by MK] David Cooper and Sophie Raymont gave false statements against the Claimant as follow on from 27.10.16 meeting with MK (point 11 above).

[322]During the hearing the Judge attempted to clarify with the Claimant how this amounted to discrimination or harassment by Mubashra Khan. Although the response to that enquiry was unclear, we have approached this complaint on the basis the Claimant is alleging that in some way Mrs Khan caused these two others to give false statements.

[323]There is nothing to suggest that either Mr Cooper or Ms Rayment said what they did to Mrs Parmar because Mrs Khan had influenced them. Mrs Parmar’s note, as with that made by Mr Raindi previously, plainly captures the personal observations of these two individuals. They are reporting what they have seen and what they think.

[324]The alleged treatment or unwanted conduct was not done and the claim fails. Case Number: 3323750/2017 73 Schedule 1, Allegation 19 – 17.11.16 [direct discrimination & harassment by MK] Email from MK to KP ‘Since our meeting when you were last attended the Luton office Manjeet has been fine but I am slightly concerned this may just be artificial until she obtains her training contract! We will wait and see.’

[325]This email was sent. The treatment or unwanted conduct occurred. This was not, however, related to or because of race or religion. Once again, Mubashra Khan wrote in these terms because they genuinely reflected how she felt about working with the Claimant. This did not, at all, stem from race or religion; it was not because of or related to those protected characteristics. Rather it was the product of the Claimant’s workplace behaviours. Accordingly, the claim fails. Schedule 1, Allegation 20 – 25.11.16 [direct discrimination & harassment by MK] Approximately 8.40hrs, over a costs schedule, MK would not allow the Claimant to contact the Director regarding a schedule of costs approved by him and instead shouts at her.

[326]Whilst Mubashra Khan told the Claimant she would contact Mr Raindi, she did not stop the Claimant from doing this herself (which she did). This conversation became heated with raised voices on both sides. To this extent only was any part of the alleged treatment or unwanted conduct done.

[327]As set out above, the Claimant refused to follow Mrs Khan’s reasonable instructions on the schedule and sought to use Mr Raindi’s comments on an earlier draft as a justification for this. Unsurprisingly, Mrs Khan found the Claimant’s obstructive behaviour very frustrating. Mrs Khan’s reaction generally and any point at which she raised her voice had nothing whatsoever to do with race or religion; it was not because of or related to those protected characteristics. Accordingly, the claim fails. Schedule 1, Allegation 21 – 25.11.16 09.50hrs MK emails Jasbir Raindi ‘‘I have just told her to make the attached amendments but she is refusing to do so as you have approved it and she has just had an argument. To be honest I have tried working very hard with her and am sorry but I cannot work with her. I have just about had enough of her attitude!’

[328]The Claimant has not stated whether this is direct discrimination or harassment. We have assumed it is pursued as both.

[329]This email was sent. The treatment or unwanted conduct occurred. This was not, however, related to or because of race or religion. Once again, Mubashra Khan wrote in these terms because they genuinely reflected how she felt about working with the Claimant. This did not, at all, stem from race or religion; it was not because of or related to those protected characteristics. Rather, it was the product of the Claimant’s workplace behaviours. Accordingly, the claim fails. Case Number: 3323750/2017 74 Schedule 1, Allegation 22 – 25.11.16 [direct discrimination & harassment by MK] MK would not allow the Claimant to meet with her client and asked Farah Khan to go instead

[330]Mubashra Khan directed Farah Khan to attend this client rather than the Claimant. The alleged treatment or unwanted conduct was done.

[331]This happened because it was a case that Ms Khan had been working on previously and Mrs Khan thought it would be better in terms of continuity, which rationale she explained to the Claimant at the time. This had nothing whatsoever to do with race of religion; it was not because of or related to those protected characteristics. Accordingly, the claim fails. Schedule 2, Allegation 9 – 25.11.16 [harassment by FK] When MK had bullied, shouted at the Claimant. Arouje Khan and Marina Khan both were not impressed and said, ‘I am sorry but the way she just spoke to Manjeet, is well out of order’. MK, ‘Yeah why is she shouting?’ FK laughed and said, ‘’Oh she’s just deciding on who to take downstairs

[332]This is a complaint about Farah Khan laughing. Ms Khan denied having laughed. We found Ms Khan’s evidence about this persuasive. She described the atmosphere in the office as being very uncomfortable and not at all conducive to laughter. This strikes us as an entirely realistic characterisation. We don’t think anyone in the office that day found this situation to be humorous.

[333]The alleged treatment or unwanted conduct was not done, this claim fails. Schedule 1, Allegation 23 – 25.11.16 [direct discrimination & harassment by MK] MK to the Claimant ‘Manjeet shut the Fuck up’

[334]This was said.

[335]The reason it was said is that Mubashra Khan had reached the point where should no longer cope with the Claimant’s obstructive and confrontational behaviour. In a momentary lapse, Mrs Khan lashed out. This had nothing whatsoever to do with race or religion; it was not because of or related to those protected characteristics. The claim fails. Schedule 1, Allegation 24 – 25.11.16 [direct discrimination & harassment by MK] Tel Note by Jasbir Raindi from a phone call with MK She cannot work with the Claimant anymore; she will seek a transfer or consider leaving and she will not apologise to the Claimant. He decided to monitor the Claimants work

[336]This is a complaint about what Mubashra Khan told Mr Raindi. The remainder of her text is the consequence, there was no allegation of discrimination against Mr Raindi for having taken these steps.

[337]Mrs Khan told Mr Raindi what he recorded. The alleged treatment or unwanted conduct was done. This was not, however, related to or because of race or Case Number: 3323750/2017 75 religion. Mrs Khan spoke in these terms because they genuinely reflected how she felt about working with the Claimant. This did not, at all, stem from race or religion; it was not because of or related to those protected characteristics. Rather, it was the product of the Claimant’s workplace behaviours. Accordingly, the claim fails. Schedule 2, Allegation 10 - 25.11.16 [harassment by FK] FK provided her employers with a false statements as a witness to an incident where it would be foreseeable to cause a job loss to the Claimant

[338]This a reference to the email Farah Khan sent on 25 November 2016. The email was sent. It was not, however, foreseeable that the Claimant would be dismissed as a result of this one email in and of itself.

[339]To the extent the email was sent, the alleged treatment or unwanted conduct was done.

[340]The reason this email was sent is that it genuinely reflected Ms Khan’s views of the day in question and the Claimant more generally. This view was informed by the Claimant’s workplace behaviours. The sending and content of this email had nothing whatsoever to do with race or religion; it was not related to those protected characteristics. Accordingly, the claim fails. Schedule 2, Allegation 11 - 25.11.16 [harassment by FK] FK guided SR to provide a false statement to the Respondent against the Claimant, knowing it would cause a detriment to the Claimant of a job loss.

[341]There is no evidence whatsoever to suggest Ms Rayment was guided to write her email of this date. The email is quite plainly a first person account of what she saw and thought. The Claimant’s allegation is pure conjecture, stemming from her inability to accept that anyone might think of her that which Ms Rayment wrote.

[342]The alleged treatment or unwanted conduct was not done and the claim fails. Schedule 1, Allegation 26 – 25.11.16 & 26.11.16 [victimisation by MK] The Claimant raised a grievance with HR and her Directors.

[343]The Claimant did not raise a formal grievance. The Respondent sought to address her informal complaints about Mubashra Khan with various holding measures and then by way of a mediation on 8 December 2016, when Mrs Parmar returned from leave. In any event, this is an allegation of victimisation by Mrs Khan, yet the detriment relied upon is said to be the action of the Claimant (i.e. raising a grievance). Her own act cannot be a detriment done to her by Mrs Khan. The claim fails. Case Number: 3323750/2017 76 Schedule 1, Allegation 25 – 08.12.16 16 [direct discrimination & harassment by MK] The Claimant gave her version of the event to KP, whom did not inform her of the evidence against her. The entire mediation session prior to the Claimants dismissal, when asked by the KP why MK swore at the Claimant, ‘She responded, ‘Because she was aggressive towards me’.

[344]This is an allegation against Mubashra Khan. The complaint is that during the mediation session on 8 December 2016, Mrs Khan accused the Claimant of being aggressive.

[345]Mrs Khan did say the Claimant was aggressive. She confirms this in her witness statement. The alleged treatment or unwanted conduct was done.

[346]Mrs Khan said this because it genuinely reflected her view of how the Claimant behaved. We are not surprised by this characterisation, which is consistent with the Claimant’s approach, as described by Mrs Khan and other witnesses. Mrs Khan’s comments had nothing whatsoever to do with race or religion; it was not because of or related to those protected characteristics. Accordingly, the claim fails. Schedule 1, Allegation 27 – 08.12.16 [victimisation by MK] The dismissal of the Claimant.

[347]This is an allegation of victimisation by Mubashra Khan. This claim fails for a number of reasons:347.1 Mrs Khan did not dismiss the Claimant, rather she was dismissed by the Respondent; 347.1.1 the Claimant was given a week’s notice by the Respondent’s letter of 8 December 2016, sent by Mr Gupta, the CEO, pursuant to the recommendation of Mrs Parmar;

347.2 furthermore, the protected act the Claimant relies upon was the allegation of discrimination in her grounds of appeal, dated 14 December 2016; 347.2.1 the Claimant cannot have been dismissed because of a protected act she had not yet done.

[348]For the sake of completeness, Mrs Parmar’s recommendation was based upon her view of the Claimant’s conduct and performance during her probation and had nothing whatsoever to do any protected act. Schedule 1, Allegation 28 – 26.02.17 [victimisation by JB] Appeal Decision.

[349]The Claimant’s appeal was dismissed. The treatment or unwanted conduct was done. Case Number: 3323750/2017 77

[350]The reason for this had nothing whatsoever to do with the Claimant having, in one short paragraph on page 3 of her 6-page grounds of appeal, accused Mubashra Khan of discrimination. Mr Bruce was exceedingly thorough and fair in his approach to this appeal. He gave the Claimant a very full opportunity to argue her case. He dismissed the appeal because he believed the original decision was properly made and there were no grounds overturn it. His decision was not to any extent at all because of a protected act. Accordingly, this claim fails. Limitation

[351]In the event that we had found for the Claimant, or were minded to subject to any jurisdictional bar, then it would have been necessary to consider the time issues: whether there was a continuing act and the claim was brought in-time following the end of that; or whether it was just and equitable to extend time for what were otherwise out of time complaints. Given none of the discrimination claims have merit, we do not need to address limitation. Wrongful Dismissal

[352]The Claimant was entitled to 1 week’s notice of dismissal. Her contractual entitlement was 1 week during her probation and 1 month “after successful completion of the probation period”. The Claimant did not successfully complete her probation period. A probationary period is not successfully passed merely by the elapse of time. She was repeatedly told of her failings at and following probation reviews. She was invited to a final probation meeting, at which her poor conduct was discussed and Mrs Parmar told her she would not be recommended for a training contract. The Claimant was never (per clause 2.2) formally notified of successfully completing her probation period. On the contrary, she was given notice in writing.

[353]On this basis, the Claimant remained entitled to notice of 1 week only, which she was given. The breach of contract claim fails. EJ Maxwell Date: 10 May 2022 Sent to the parties on: 12 May 2022 For the Tribunal Office: Case Number: 3323750/2017 1 EMPLOYMENT TRIBUNALS Claimant: Miss M Puar Respondent: Duncan Lewis Solicitors Ltd Heard at: Watford On: 4 October 2023 Before: Employment Judge Maxwell Ms Jaffe Mrs Hancock Appearances For the Claimant: no attendance For the Respondent: Mr Isaacs, Counsel RESERVED COSTS JUDGMENT The Claimant is ordered to pay the Respondent’s costs in the sum of £20,000.

[1]By letter of 12 May 2022, the Respondent applied for a costs order against the Claimant.

[2]Following a postponement of the costs hearing on 15 December 2022, the Respondent applied for its costs of that event, by way of an email of 5 January 2023. Preliminary

[3]The Claimant did not attend the hearing today. No communication had been received from her in this regard. We caused the Tribunal administration to telephone the Claimant, several times, but she did not answer. We informed Mr Isaacs of this at the start of the hearing. He indicated that his instructing solicitor had recently attempted to engage the Claimant in preparation for today without Case Number: 3323750/2017 2 any success. Emails had been sent to the Claimant, as had a physical copy of the cost application hearing bundle. None of this elicited any response from her.

Findings of fact

Hearing

[4]The Respondent provided a bundle of relevant documents running to 316 pages and a skeleton argument in support of the costs application. We received oral submission from Mr Isaacs and reserved our decision. The Claimant did not attend and made no representations.

Law

[5]So far as material, rule 76 provides: 76. When a costs order or a preparation time order may or shall be made (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; or (b) any claim or response had no reasonable prospect of success; or (c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which the relevant hearing begins.

[6]A two-stage test applies before deciding to make an award in principle:6.1 whether the threshold for a costs order under rule 76 is satisfied;

6.2 whether, in the circumstances of the case at hand, it is appropriate to make an order for costs.

[7]As to the amount is a case where it is appropriate to make an award, the Tribunal may take into account:7.1 the means of the paying party (although the immediate inability to pay may not prevent an order being made);

7.2 the reasonableness of the costs incurred by the recipient. Reasonable Prospects

[8]The questions of whether a response had no reasonable prospect of success and whether it was unreasonable to pursue the same, were considered by the EAT in Opalkova v Acquire Care Ltd EA-2020-000345-RN per HHJ Tayler: 22. Determining that a response did not have a reasonable prospect of success or that a respondent acted unreasonably in defending the claim and/or in maintaining the defence is a threshold that results in the tribunal Case Number: 3323750/2017 3 having a discretion to make a cost or preparation time order. As HHJ Auerbach noted in Radia v Jefferies International

[2020] IRLR 431

: “61. It is well-established that the first question for a Tribunal considering a costs application is whether the costs threshold is crossed, in the sense that at least one of r 76(1)(a) or (b) is made out. If so, it does not automatically follow that a costs order will be made. Rather, this means that the Tribunal may make a costs order, and shall consider whether to do so. That is the second stage, and it involves the exercise by the Tribunal of a judicial discretion. If it decides in principle to make a costs order, the Tribunal must consider the amount in accordance with r 78. …” [Original emphasis]23. HHJ Auerbach considered the overlap between a claim or response having no reasonable prospect of success and unreasonable conduct: “64. This means that, in practice, where costs are sought both through the r 76(1)(a) and the r 76(1)(b) route, and the conduct said to be unreasonable under (a) is the bringing, or continuation, of claims which had no reasonable prospect of success, the key issues for overall consideration by the Tribunal will, in either case, likely be the same (though there may be other considerations, of course, in particular at the second stage). Did the complaints, in fact, have no reasonable prospect of success? If so, did the complainant in fact know or appreciate that? If not, ought they, reasonably, to have known or appreciated that?”

24. Accordingly, there are three key questions. First, objectively analysed when the response was submitted did it have no reasonable prospects of success; or alternatively at some later stage as more evidence became available was a stage reached at which the response ceased to have reasonable prospects of success? Second, at the stage that the response had no reasonable prospects of success did the respondent know that was the case? Third, if not, should the respondent have known that the response had no reasonable prospect of success?

25. These questions are relevant whether the matter is analysed on the basis that the response had no reasonable prospects of success or that the respondent was guilty of unreasonable conduct in defending or maintaining the defence to the claims. The relevance of the questions differ between these two grounds for making a preparation time order. The question of whether a response had reasonable prospects of success is objective and is the threshold for making a preparation time order under Rule 76(1)(b) ET Rules, even if the respondent was not aware, and should not reasonably have been aware, that the response had no reasonable prospect of success. However, the lack of understanding of the merits of the response would be relevant, along with other matters, to the discretionary question of whether a preparation time order should be made. The questions of whether the respondent knew that the response had no reasonable prospects of success, or should reasonably have known, are relevant to the threshold question for a preparation time order on the basis that defending, or maintaining the defence, to the claim was unreasonable conduct for the purposes of Rule 76(1)(a) ET Rules; after which the discretion to make a preparation time order has to be applied considering all relevant factors. Whichever of the two provisions is Case Number: 3323750/2017 4 applied it is hard to see that the result will be different. However, the matter must be analysed properly.

26. In considering whether the respondent should have known that a response had no reasonable prospects of success, a respondent is likely to be assessed more rigorously if legally represented: see for example Brooks v Nottingham University Hospitals NHS Trust

UKEAT/0246/18/JOJ

, at paragraph 3.

[9]The approach set out in Opalkova applies equally where the Claimant’s claim is said to have no reasonable prospect of success and the relevant questions would, therefore, be whether:9.1 objectively, the claim had no reasonable prospect of success;

9.2 subjectively, the Claimant knew that was so;

9.3 if not, they ought reasonably to have known. Vexatious

[10]The question of whether a party had acted vexatiously was addressed in Attorney General v Barker

[2000] EWHC 453

per Bingham LCJ:

[19][…] “Vexatious” is a familiar term in legal parlance. The hallmark of a vexatious proceeding is in my judgment that it has little or no basis in law (or at least no discernible basis); that whatever the intention of the proceeding may be, its effect is to subject the defendant to inconvenience, harassment and expense out of all proportion to any gain likely to accrue to the claimant; and that it involves an abuse of the process of the court, meaning by that a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process. […] Discretion 11. Even where the threshold for an award of costs has been met, the Tribunal must still consider whether in its discretion such an award is appropriate; see Barnsley MBC v Yerrakalva

[2011] EWCA Civ 1255

, per Mummery LJ: 41. The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The main thrust of the passages cited above from my judgment in Mc Pherson was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the ET had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. In rejecting that submission I had no intention of giving birth to erroneous notions, such as that causation was irrelevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances. Case Number: 3323750/2017 5 12. A potentially relevant factor in connection with the exercise of this discretion may be whether, when and if so in what terms the other party sent a costs warning letter. This point was considered, in passing, by the EAT in Vaughan v LB Lewisham

UKEAT/0533/12/SM

, per Underhill P: 18. We do not believe that as a matter of law an award of costs can only be made where the party in question has been put on notice, by the making of a deposit order or otherwise, that he or she is at risk as to costs. Nor, however, do we believe that the absence of such notice, or warning, is necessarily irrelevant: indeed it was expressly relied on in a recent decision of Mr Recorder Luba QC as one of the reasons for not exercising a discretion to award costs under the cognate jurisdiction in this Tribunal – see Rogers v Dorothy Barley School (

UKEAT/0013/12

), at para. 9. What, if any, weight it should be given in any particular case must be judged in the circumstances of that case; and it is, as we have already observed, regrettable that the Tribunal does not expressly address the question. 19. In our view the fact that the Appellant had not been put on notice was not in the present case a sufficient reason for withholding an order for costs which was otherwise justified. In the first place, we do not believe that it would be just to deprive the Respondents of an award of costs because they had not sought a deposit order: there may, as discussed above, be good reasons why a party may prefer not to take that course. If there is any criticism, it could only be that they did not write to her at an early stage setting out the weaknesses in her claims and warning that a costs order would be sought if they failed. But what is significant is that the Appellant at no stage in her submissions to the Tribunal or before us asserts that if she had been given such a warning she would have discontinued her claim; and nor in any event does it seem to us that any such assertion would have been credible. She was, as the Tribunal emphasises, convinced, albeit without any rational or evidential basis, that she was the victim of a conspiracy and of a serious injustice, and it seems to us highly unlikely that a letter from the Respondents, however well-crafted, would have caused the scales to fall from her eyes. Conclusion Unreasonable Conduct13. The Claimant has conducted these proceedings unreasonably, almost from their inception. We recited the procedural history in our reserved judgment on liability.

14. The Claimant failed to attend a preliminary hearing on 1 June 2017, sending an email at 5.30pm the night before saying she could not attend because she was starting a new job. The Claimant must have known this communication was sent too late for it to be effective in preventing a waste of time and resources on the part of both the Respondent and the Tribunal. The Claimant has a LLB and passed the Law Society’s professional exams. She has been working in law firms for many years, attempting to obtain a training contract. Whilst not a qualified solicitor, she is very familiar with litigation, preparing cases and attending court hearings, including as an advocate. In addition to her professional life, she has also brought proceedings in her personal capacity. As a result, the Claimant must be well aware that by 5.30pm, the Respondent would Case Number: 3323750/2017 6 have made arrangements for a representative (Counsel or a Solicitor) to attend the Tribunal and a judge assigned to conduct the hearing. Furthermore, if the Claimant was starting a new job that day, it is exceedingly unlikely she had only learned of this at or shortly before 5.30pm the day before. This was unreasonable behaviour.

15. Because of her non-attendance, the preliminary hearing was relisted. EJ Manley did, however, make an order for the Claimant to provide further information. The Claimant did not comply with that order. An unless order was made and the Claimant did not comply with that. Her claim was struck out and notice of this sent to the parties on 18 August 2017. The same day as that notice was sent, the Claimant applied for the strike out to be set aside and this was subsequently granted. Ignoring the order for further information was unreasonable. Acting only when her claim was struck out was unreasonable. This conduct tended to waste the time of the Respondent and Tribunal.

16. Following a substantial expansion of the Claimant’s claim, orders were made on 22 January 2021 for disclosure and the agreement of a document bundle. We have already made extensive findings (for the purpose of determining the Respondent’s strike out application) with respect to the Claimant’s unreasonable behaviour with respect to the disclosure of documents and bundle preparation. Those findings are relevant to this costs application and we repeat them (see in particular, paragraphs 24 to 57 and 91 to 106 of our liability decision).

17. Notably, following her unreasonable behaviour between March 2021 and February 2022 the Claimant then applied for a postponement on the basis she was not prepared for the final hearing. This was unreasonable. The Claimant also made an application for postponement based on ill-health which was not substantiated and we refused. The impression created by the Claimant’s behaviour was that she was keen to have the Respondent as a party to a vast discrimination claim, yet reluctant to undertake necessary preparation or attend a final hearing.

18. Whilst she intermittently referred to her health again during the liability hearing, her representations were inconsistent and often contradicted by her behaviour. She said she was suffering tiredness yet was vigorous in her advocacy throughout the day, even suggesting sitting late. She said she could not find a document because of problems with her vision, when it was evident this was the product of disorganised paperwork on the desk in front of her. 19. The Claimant conducted the hearing in an unreasonable manner. She was frequently, rude, disruptive or irrelevant (see paragraph 144 to 150 of our liability decision). It was necessary for the Judge to intervene and remind the Claimant of the ground rules for the hearing, repeatedly. Despite occasional improvements in the Claimant’s behaviour, these were short-lived. The Claimant’s conduct would have been unacceptable for any party but was all the more surprising given her professional background. She is exceedingly familiar with attending court hearings, including as an advocate, and must know what is expected.

Conclusion

[20]Most recently, the Claimant conducted herself unreasonably with respect to the hearing of the Respondent’s costs application in December 2022. By reason of Case Number: 3323750/2017 7 an oversight, the matter had been listed before the Judge only and not with the members. The application could, however, still continue if the parties consented. They were contacted the day before and agreed to proceed in this way.

[21]On the morning of the costs hearing in December 2022, in the circumstances set out in the case management order made on that occasion, the Claimant failed to attend. Firstly, she emailed to say her car would not start and she would be late. We note the Claimant only lives in Luton and had she simply decided at that point to come instead by public transport, it would not have taken very long. Whilst she may not have been in Watford for a 10am start, she would not have been very late. Instead, according to her later email, she simply waited and tried her car again. We pause to note that unless she called out a mechanic, it is difficult to see what reason she could have for believing that a starting fault would be spontaneously remedied. Even at 9.39am, had she then set out by bus and / or train, she would still have been with us in the morning. Instead, she stayed put. The hearing was then converted to CVP, so as to accommodate her reported difficulties with travel. The Claimant did not, however, attend. When the Tribunal administration contacted her again, the Claimant had a new reason for non-attendance, namely not trusting EJ Maxwell. Without the Claimant’s consent, which she then appeared to withdraw, the hearing could not go ahead as judge sit alone. The Claimant did not advance any reason for EJ Maxwell to recuse himself, then or since. The Claimant’s stance toward whether, when and how she would attend this hearing was unreasonable. The inference we draw as that she did not wish to attend the hearing and sought to frustrate the process.

[22]We note that despite requesting an in-person hearing of the Respondent’s costs application and the matter being relisted in that way today, the Claimant did not attend. She had not given any reason for being absent. She has failed to respond to communication from the Respondent or Tribunal. This appears to be part of a pattern whereby the Claimant chooses whether and if so to what extent she will participate in these proceedings, irrespective of inconvenience to the Respondent or Tribunal. No Reasonable Prospects

[23]The Claimant’s claims had no reasonable prospects of success, for the reasons given in our liability decision. There were two main reasons for this. Firstly, there was no evidence to show that any of the treatment she complained of was because of race, with respect to the two individuals she said had discriminated against her. She also had no answer whatsoever for why substantially the same concerns and accounts of her behaviour should have emerged from others who were not accused of discrimination and / or shared the Claimant’s protected characteristics. Secondly and separately from the absence of evidence to prove that which the Claimant needed to, there was overwhelming evidence which tended to show a non-discriminatory reason for the matters she complained of (to such extent as these occurred) namely her own misconduct and poor performance. The notion that Mr Bruce had been motivated to determine the grievance appeal as he did because of a single paragraph alleging discrimination, buried in the Claimant’s lengthy written submissions, was always fanciful and this is reflected in her failure even to put the point to him. The Claimant’s thrust at the hearing appeared to be one of fairness but she did not have an unfair dismissal claim and was frequently reminded of this. Case Number: 3323750/2017 8 Vexatious

[24]The Claimant’s approach to this litigation was most unusual and at times difficult to manage. Her engagement has been intermittent and, as set out above, whilst she was keen to grow and keep her claim alive, she sought to avoid a final hearing. At least in part, her motivation appears to be to cause inconvenience to the Respondent. Our conclusion is that she wanted to keep the prospect of a large discrimination claim hanging over the Respondent without allowing that to reach a conclusion. She knew the Respondent wished to push this forward and she sought to hold it back. This is, largely, the reason why we are adjudicating on a costs application circa 7 years after the events complained about. The purpose of Tribunal proceedings is to allow for a claim to brought and adjudicated upon, not to provide a forum for perpetual procedural wrangling. In her non-attendance at hearings, non-compliance with orders and late postponement applications, the Claimant has been vexatious.

[25]There was also vexatiousness in the way the Claimant approached several of the Respondent’s employees. Serious allegations of impropriety and / or dishonesty were put, without evidence or logic. The Claimant persisted in this despite being reminded her claims were for discrimination and with respect to the appeal, victimisation. The Respondent’s witnesses are legal professionals for whom allegations of this sort could have serious ramifications. There was no need for the Claimant to proceed in this way. Our conclusion is that she wished to vex these individuals. She sought to provoke them and exacerbate the situation. She misused the Tribunal process to achieve this end. Threshold

[26]The threshold for making an award of costs is satisfied in this case by reason of:26.1 the unreasonable way in which the Claimant has conducted the proceedings;

26.2 the Claimant’s claims had no reasonable prospect of success;

26.3 the Claimant has engaged in vexatious conduct;

26.4 it was unreasonable for the Claimant to pursue her claims because she knew or ought reasonably to have known they had no reasonable prospect of success. Discretion

[27]We have decided this is an appropriate case in which to make an award of costs because of:27.1 the nature, extent and duration of the Claimant’s unreasonable conduct;

27.2 the Claimant persisting in unreasonable conduct despite frequent judicial intervention;

27.3 the complete lack of merit in her claims; Case Number: 3323750/2017 9

27.4 the Claimant has been vexatious;

27.5 the Claimant was warned by the Respondent her claims had no reasonable prospect of success and given the opportunity to withdraw them;

27.6 the Claimant knew or ought reasonably to have known her claims had no reasonable prospect of success.

[28]Given her extensive experience in litigation, the Claimant knew or ought reasonably to have known that it will not suffice for a Claimant simply to make an assertion that some wrong has been done to them. The elements necessary to establish that wrong must be established with evidence. There was no evidence here to show that the reason for the treatment complained of was race or religion, or in the case of the appeal outcome, victimisation. The Claimant must have known there was nothing of the sort. Notably, the Claimant failed not only to put her case to relevant witnesses (i.e. “you did [X] to me because I am British Indian or Sikh”) but also she did not put to them evidence which she said showed that her race or religion influenced her treatment (i.e. “what you wrote in the document at page [Y] shows that you were hostile because I am British Indian or Sikh”). The obvious reason for this failure was that not even the Claimant believed the evidence tended to show that she had been discriminated against. If there had been any such material, we have no doubt the Claimant would have put this to witnesses and relied on it in her submissions.

[29]Similarly, the Claimant must have known there was a vast body of documentary evidence which tended to show a non-discriminatory reasons for the treatment she complained of, namely concerns on the part of colleagues and managers about her performance and conduct in the workplace. The Claimant’s evidence on this point was entirely unconvincing. She maintained a steadfast denial throughout, not only of there being any issues with her performance but also of the fact of them being raised with her. This latter point was incontrovertible. The Respondent’s considerable and growing concerns with the Claimant were raised with her time and time again, both orally and in writing. Furthermore, this point could be established from the extensive correspondence trail in the hearing bundle. Even when the Claimant was taken to many documents in which her employer complained about her work or conduct, she denied there was any criticism. This was absurd. What the Claimant was saying was directly contradicted by the written information in front of her. She did not offer any different interpretation of this material, she simply ignored it. The Claimant must have known that her position – no concerns were ever raised about my performance – was simply untrue. Whilst she might disagree with the merits of those concerns that is a separate matter. As set out in our liability decision, the distinction between whether a complaint was justified and whether it had been made was not lost on her.

[30]Even if the Claimant had been unaware of the deficiencies set out above, which we do not accept is likely, these problems were drawn to her attention by the Respondent.

[31]By a letter of 14 February 2022, the Respondent wrote to the Claimant, without prejudice save as to costs: Case Number: 3323750/2017 10 We are of the considered opinion that, now all evidence relating to this case has now been disclosed, it is evident that your claims have no reasonable prospect of success for the reasons set out below. Consequently it would be unreasonable for you to continue pursuing these claims. We would highlight that, given the nature of the claims raised, the burden of proof lies with you in the first instance, as the claimant in this case. This means you must be able to establish that you were the subject of discrimination. The Respondent will only have to prove that you were not subjected to discrimination in the event you are able to demonstrate facts that would, in the absence of any other explanation give rise to an inference that you were discriminated against. It is our view that you will be unable to make such a case.  Race and Religious Discrimination: Your entire case is based entirely on the premise that there have historically been tensions between Pakistani Muslims and Indian Sikhs.  You have provided no evidence to demonstrate that this had any impact whatsoever on your relationship with the Respondent or the Respondent's employees. There is consequently no basis for your discrimination allegation.  You have sought to rely on this basis for race discrimination in all but one allegation. This is despite the fact only two of the Respondent's former employees against whom you have made allegations are Pakistani Muslims, which you have alleged to be the reason for the alleged discriminatory treatment against you as an Indian Sikh. Even in the highly unlikely event you would be able to succeed in claims against that employee, your claims relating to all other employees who do not come from either a Pakistani Muslim background, including claims in respect of your dismissal, are therefore bound to fail.  The vast majority of your claims are solely based on alleged oral comments and there is no evidence to support your version of events that any such comments were made. It will be your word against that of the Respondent's employees, who as per their witness statements, deny that the alleged events occurred at all and further deny that these comments were made because of your race or religion. It is our opinion that you will not be able to succeed with any such claims.  Your claim fails to take account of the overwhelming issues with your conduct and capability, which are documented consistently throughout the bundle and the Respondent's witness statements. There is also clear evidence that you were warned of these problems throughout your employment with the Respondent. From the existence of these issues and the supporting evidence, it is clear that the sole reasons for your dismissal were capability and competence. These issues and the evidence also demonstrate the fact the Respondent's witnesses are being truthful in their explanations of any disputes that may have occurred. Case Number: 3323750/2017 11  Your allegations have been inconsistent and lacked detail throughout your appeal against your dismissal and these proceedings. It is our view that this demonstrates the lack of veracity of your claims. Please note that the above list is not exhaustive. These points will of course be elaborated upon within our client's witness evidence, but we consider that you have no reasonable prospects of overcoming these significant flaws in this claim. However, notwithstanding the strength of our position, our client is keen to ensure that it acts proportionately. ln the circumstances, it is prepared to provide you with the opportunity to withdraw your claim, in return for which it will not seek an award of costs against you. We submit that this offer is very reasonable on the basis that you have no reasonable prospects of success and in the highly unlikely event that any of your claims do succeed, they are of very limited value. As your claim regarding your dismissal is bound to fail, we contend that you will not be entitled to claim any compensatory award. You are not entitled to a basic award, thus the value of your claim will be limited to an injury to feelings award which in our view would be at the bottom end of the Vento bands in any event. Consequently our offer not to pursue you for costs is an entirely reasonable one. This offer cannot be unlimited in time, however, and accordingly we believe it is necessary and appropriate to set a deadline for the acceptance.

[32]The Respondent’s letter was drafted in appropriate and reasonable terms. It identified the key deficiencies and reasons why the Claimant’s claims would not succeed. It was not cast in draconian terms. It offered the Claimant a simple way out but warned that costs would be pursued if she continued and failed.

[33]The Claimant rejected this invitation to withdraw. In her email to the Tribunal of 17 November 2022, she wrote: […] The Respondents are threatening the Claimant with costs as their continuing advise to their clients is the low merits of the Claimants case, the Claimant avers that once the disclosure is granted the situation would be otherwise. The Respondent is being hostile and unreasonable, using its best endeavours to win a case by failing with full and frank disclosure.

[34]Whilst the Claimant refers to disclosure and appears to suggest that this will prove her case, she does not say what it is that will be uncovered and have this effect. Her remark is vague and speculative. By an email of 17 February 2022, the Respondent repeated its offer, albeit this time offering her £1,250. A final offer, expressly in the form of a ‘drop hands’ was made during the final hearing after the Claimant had given evidence. The Respondent drew to the Claimant’s attention the Tribunal had already found her conduct unreasonable in some respects (i.e. with respect to disclosure and the document bundle).

[35]As set out above, the Claimant knew or ought reasonably to have known of the lack of merit in her claims. Separately from whether she had identified this for herself, it was drawn to her attention in clear terms. At no stage did the Claimant Case Number: 3323750/2017 12 engage with the difficulties the Respondent had identified in any meaningful way. She simply ignored these proper points.

[36]The Claimant has embroiled the Respondent in a vast unmeritorious claim over a number of years. She has proceeded with it against the merits, which either were or ought reasonably to have been apparent to her. She has been rude and disruptive. At times she has sought to do that which is most likely to frustrate and inconvenience the Respondent. She has acted both unreasonably and vexatiously. She was given proper opportunities to withdraw from this and failed to do so. We are satisfied it is appropriate and in the interests of justice to make an award of costs. Amount

[37]The Respondent has put forward a calculation of its costs in excess of £40,000. This is not a detailed bill of costs and appears to us as possibly involving an underestimate. Given the volume of substantive documentation, party correspondence and hearings, the solicitor’s profit costs of circa £15,000 appear very modest. The sums included with respect to Counsel’s fees also appeared to be less than that for which he had billed, which could be found separately in the bundle of documents. There was nothing unreasonable about the costs figures in which the Respondent’s two costs applications were made. In any event, the Respondent capped its application at £20,000 in total and was, on any analysis, seeking less than half of the costs incurred. In a case such as this, where the entire claim was without merit and the Claimant knew or ought reasonably to have done so, it would have been appropriate to award the entirety of the costs reasonably incurred. We are easily satisfied that £20,000 is a proper sum to

award.

[38]The only other consideration would have the Claimant’s ability to pay. A case management order was made requiring the Claimant to provide a statement of means and supporting documentary evidence, if she wished for this to be taken into account by the Tribunal when determining the question of costs. The Claimant presented nothing in this regard, whether by the deadline set or at all. As at the last hearing the Claimant was in employment. She has a history of employment with solicitor’s firms as a case worker or (non-qualified) advocate in cases where rights of audience are not required. We would expect her to have some disposable income. In the absence of evidence, we have been provided with no reason to conclude the Claimant would not be able to pay these costs. We note that even if she did not have the sum of £20,000 immediately, there is no reason to suppose she would not be able to pay this as a result of future earnings and employment. In any event, the Claimant has had ample opportunity to advance evidence in this regard and has chosen not to. It would not, therefore, be appropriate to reduce an award in an otherwise reasonable sum of £20,000.