[1]It was reasonably practicable for the claims of unlawful detriment on grounds of protected disclosure contrary to s.47B of the Employment Rights Act 1996 (hereafter referred to as the ERA) to be presented within the time limit specified under s.48(3) of the ERA and/or they were not presented within a reasonable time thereafter.[2]The claim as presently worded does not include a complaint of unlawful detriment on the ground that action was taken or was proposed to be taken by or on behalf of the claimant with a view to enforcing the right to be paid the national minimum wage of contrary to s.23 of the National Minimum Wage Act 1998.[3]It was not reasonably practicable for the claim of automatic unfair dismissal under under s.103(A) of the Employment Rights Act of an automatic unfair dismissal to be made within the time limit specified under s.111 of the ERA but it was not presented within a reasonable time thereafter.[4]It was reasonably practicable for an unauthorized deduction from wages claim in relation to underpayment of national minimum wage to be presented within three months of the payment from which the alleged deduction was made as 1 ph judgment + cm Nov 2014 wip version prescribed by s.23 of the ERA. Alternatively, it was not presented within a reasonable time thereafter.[5]The above claims under the ERA were not brought within the applicable time limits and therefore, the employment tribunal does not have jurisdiction to hear them. There are no reasonable prospect of the claims succeeding and the claims against both respondents under the ERA 1996 and NMW Act 1998 are struck out under rule 37 of the Employment Tribunal Rules of Procedure 2013.[6]The claim of harassment and discrimination claim on grounds of sex and race were not brought within three months of the act complained of and it is not just and equitable to extend time under s.123(1)(b) EQA.[7]The claim of victimization was not brought within three months of the act complained of and it is not just and equitable to extend time under s.123(1)(b) EQA.[8]The above claims under the EQA were not brought within the applicable time limits and therefore, the employment tribunal does not have jurisdiction to hear them. There are no reasonable prospect of the claims succeeding and the claims against both respondents under the EQA are struck out under rule 37 of the Employment Tribunal Rules of Procedure 2013.[9]The Employment Tribunal does not have jurisdiction to hear complaints under the Data Protection Act 2018 or the Human Rights Act 1998.
REASONS
[1]The claimant started work on 14 November 2016 as a live in Nanny caring for the children of the second respondent and Mr D.E.. She was employed through a company run by Mr D.E.. After being given one months’ notice, her employment ended on 23 June 2017. She therefore did not have enough qualifying service to be entitled to the right not to be unfairly dismissal under s.94 of the Employment Rights Act 1996 (hereafter the ERA).[2]She brought an employment tribunal claim in London Central Employment Tribunal against a subsequent employer, Melanie Marenge-Lejeune, in May of 2018 and a letter was disclosed to her within the disclosure of documents in those proceedings. She says she received it in October 2018. This caused her to discover, as she has explained to the tribunal, that actions had been taken against her by the respondents to this claim, her previous employer and the second respondent, whom she claims acted on behalf of her previous employer, that she considered needed action on her part.[3]She made a data subject access request at the end of October 2018. She subsequently complained to the Information Commissioners Office, either that that month or the following month, about alleged disclosure of information to her subsequent employer (see para.9 of the particulars of claim). She also says that she discovered through her investigations concerning her claim against Mrs 2 ph judgment + cm Nov 2014 wip version Griffiths because her employer, Mrs Marenge-Lejeune, is also known by her married name, Mrs Griffiths.[4]She discovered during the course of preparing for those proceedings that she regarded herself as not having been paid national minimum wage as a Nanny employed by the current respondents. The claimant argues that she was contracted to be paid to take a lunch break and not be paid for her lunch break but, in reality, she was unable to take it. This is the matter that was the subject of an HMRC investigation in December 2018. This ultimately led to an award being made in her favour on 30 April 2019 of £52.72 that they have satisfied, although it is fair to say that the claimant disputes that that is the correct amount. She alleges that untruths were told by the current respondents as part of the investigation and that in fact she should have been awarded more money.[5]Early conciliation in the present proceedings took place between 11 and 12 November 2019 and the claim was accepted by the Tribunal on 12 November.[6]The respondents defended and their ET3 was accepted on 11 December 2019.[7]A notice of open preliminary hearing was sent out on 8 February, this is because the respondent had in their ET3 argued that the claim was out of time and for all claims to be struck out. They also queried whether it was right that the claim should be brought against Mr B.C. because they said that the employer had been A. Limited and Mr B.C. was not the claimant’s employer. They pointed out that the claimant had not appealed against the ruling of the HMRC in relation to her National Minimum Wage claim, arguing that action could not be taken both in the Tribunal and through HMRC, nor had the ICO thought it necessary to take action against them.[8]The claimant applied to strike out the ET3 on 17 February on the basis that she said it did not respond in full to her allegations and the employment tribunal decided that it was not proportionate to do so and rejected that application on 10 April.[9]Case management orders were made by Employment Judge Heal, sent to the parties on 19 April 2020, directing that in relation to each of the claimant’s postemployment discrimination and whistleblowing claims she must send the employment tribunal and respondents a list setting out in numbered paragraphs what was the act of discrimination or whistleblowing detriment, when did it happen and how and when did she find out about it.[10]The claimant responded to that request for further and better particulars on 11 May 2020 and she applied by letter dated 18 June 2020 for further information from the respondent. She said in paragraph 3 of that letter that she had recently been contacted by the police and had been told by them that the respondent had filed a complaint of harassment against her for communicating with them because of this claim through the tribunal and also because of an application and witness statement that she had sent to them after being directed to do so by the Family Division of the High Court. 3 ph judgment + cm Nov 2014 wip version[11]It appears that the claimant’s intervention into the family proceedings was a voluntarily one made in family proceedings by which the respondents applied for parental orders in relation to their children. To the extent that the claimant complains about actions taken by the respondents in family proceedings, it seems to me that, subject to my decision on whether the claims are out of time, the principal of judicial immunity from suit may be relevant.[12]The claimant did not in so many words apply to amend her claim but a generous reading of the email of 16 June 2020 to the employment tribunal would be that she wished to include this complaint about the respondents having gone to the police as an allegation. She says: “Complaining to the police about me for trying to deal with the respondent’s conduct since last year is unreasonable and worrying. This is a post-employment continued act to harm me. They also want to harm my reputation and affect my DBS”[13]She confirmed that during the course of the preliminary hearing on 27 November 2020 hearing that she had found out that the complaint had been filed with the police on 15 April 2020. The claimant expressly applied to amend her claim on 13 November 2020 by an email in which she said that, so far as the contents of her further and better particulars were not in the ET1, she wished to apply to add them by amendment. To be clear, the claimant is complaining about what she alleges to be an additional visit to the police by Mr D.E. and the second respondent to that which she infers happened prior to issue of proceedings which is referred to in paragraph 14 of the particulars of claim.[14]I had indicated that I would decide the issues that had been listed for hearing by the notice of 8 February, namely whether to consider the strike out on the grounds that the claim is out of time and has no reasonable prospects of success before, if necessary, going on to hear consider the amendment application. As it turned out, I heard submissions from both parties in the alternative so that when I was reserved the decision I was able to consider all of the matters. If I were to decide that the claims should be struck out, then the application to amend would fall away.[15]I did remind the parties and in particular the respondent of their duties under Rule 92 to copy each other into any correspondence. The claimant has been vexed by not having received two letters dated 3 and 13 February 2020 that was sent by the respondent to the employment tribunal which I read out to her. When she heard the contents, she agreed that she was not at any disadvantage proceeding with today’s hearing despite not having received those letters.[16]She also stated during argument that perhaps Mr D.E. should be a respondent because she seemed to assert, or certainly did not agree, that in reality she was employed by A Ltd but was employed as a Nanny with the formalities of her employment being arranged through A Ltd. She apparently received a contract of employment indicating that she was in administration or Administrative Assistant which she denied. No application had been made to add or substitute Mr D.E.as a party.[17]When considering my decision in this case, I realised that I had omitted to see whether the parties were aware of the Tribunal’s powers under rule 50 of the 4 ph judgment + cm Nov 2014 wip version Employment Tribunals Rules of Procedure 2013 to make an order to prevent or restrict the public disclosure of any aspect of the proceedings in so far as it is necessary to do so in the interests of justice. The claimant claims that she was dismissed and suffered post-employment detriments because she was a whistleblower. The disclosure of information on which she relies involves an allegation of one or more serious sexual offences against one or more children. I understand from what both parties said that the police dismissed the allegations. The second respondent is the father of the children. He and his husband, who represented both respondents at the hearing, were the alleged perpetrators. It seemed to me that it would not be possible for me to explain my decision without reference to the nature of the alleged disclosures and therefore that the parties ought to have the opportunity to consider whether or not to make applications under rule 50. I caused the Tribunal to write to them and both parties made competing applications. I therefore caused the claim to be listed for a further preliminary hearing at which I heard and determined those applications and made anonymity and restricted reporting orders for reasons which are provided separately. Unfortunately, that has led to a delay in the judgment in the preliminary issues. I delivered that judgment with reasons orally on 2 June 2021 and the claimant requested written reasons at the hearing. The Issues in the claim[18]The claim form, in Box 8, sets out that the claimant is bringing the following different kinds of complaint.a. Unfair dismissal,b. Discrimination on grounds of race and sexc. Post-employment discrimination, victimisation and harassment under the Equality Act,d. obtaining using and sharing personal data in an unauthorised way under GDPR and DPA 2018,e. breach of rights under The Human Rights Act,f. breach of contract for failing to pay National Minimum Living Wage andg. whistleblowing under Public Interest Disclosure Act 1998.[19]The particulars of claim were provided in a separate document that ran to 18 paragraphs and formed the basis of the discussion at the public preliminary hearing on 27 November 2020. The format of that public preliminary hearing was that it was necessary for me to take evidence from the claimant about the reason for the delay in bringing claims, because no evidence about that had been presented in advance, but it was also necessary for me to clarify with her exactly which were the specific acts that she alleged against each of the respondents and how she alleged them to be unlawful; what kind of legal claim which the Tribunal has jurisdiction to hear did she intend to bring by the narrative set out in her particulars of claim and further particulars provided on 11 May 2020. I 5 ph judgment + cm Nov 2014 wip version therefore proceeded by asking the claimant to be affirmed so that anything that was said by way of explanation could be said on oath and incorporated her evidence and discussion by way of me asking questions and the claimant answering which led to the preparation of a list of factual allegations.[20]Her narrative intertwines with complaints against her subsequent employer, Mrs Griffiths, who is the respondent in another claim as I have already said. At times, it is difficult to separate out the allegations that she makes against Mrs Griffiths and those that she makes against these respondents. Much of what the claimant alleges is based upon her inference from what she has found out in the course of the proceedings against Mrs Griffiths. She complains that the respondents have not cooperated with her enquiries. Nevertheless, it was possible to draw up the following list of specific actions which do include at least one that is not yet in the claim form and which is the subject of the amendment application. These were read out to the claimant and she accepted that they represented the gist of her present complaints.a. First, the claimant alleges that she was dismissed because of a protected disclosure with effect from 23 June 2017.b. Next, she alleges that there was a detriment on grounds of protected disclosure by the respondents writing a letter to Mrs Griffiths in about September 2018 that she found out about in October or November 2018.c. Next, she alleges that at some point prior to 1 November 2019, the second respondent and Mr D.E. subjected her to a detriment when they volunteered information about her to Mrs Griffiths and alleged to the latter, the subsequent employer, that the claimant’s employment had been terminated on the advice of the police because of the claimant’s reports to them of child abuse. She alleges in paragraph 11 of her narrative particulars of claim that she found out this information because it was contained in Mrs Griffiths’ application for reconsideration of a costs order awarded in the claimant’s favour in the Tribunal proceedings between them. The way that the claimant explained this allegation in her evidence is that the respondents told Mrs Griffiths that they volunteered to give her information about the claimant because it was a public duty and shared file number for the Parental Order Application (see also paragraph 1 of the claimant’s further particulars dated 11 May 2020). The claimant had made allegations of child abuse which resulted in police, medical, and social services investigations. All allegations were dismissed. According to the respondents, the police advised them to terminate the claimant’s employment immediately. The claimant does not know when that action is said to have taken place by the respondent. The respondent says that, in reality, all that information available to claimant from the letter of October 2018 (from which I quote in paragraph 42 below).d. The next specific allegation is that of subjecting the claimant to a detriment by supporting her subsequent employer (Mrs Griffiths) against the claimant in her own employment tribunal claim. In reality the facts 6 ph judgment + cm Nov 2014 wip version relied upon are the same as those set out in paragraph 20.b. and c. I deal with the alleged date of knowledge below.e. Next it is alleged that the respondents (or, the second respondent and Mr D.E.), provided untrue information about the claimant in support of their own application for a parental order at the Family Court. In the present application, I am concerned primarily with whether the complaint was presented in time, however reliance upon acts done within the Family Court proceedings seem to me to be potentially affected by the principal of judicial immunity from suit.f. Next, it is alleged in paragraph 14 of the narrative claim form, that the respondent went to the police and she accuses the respondents of supporting Mrs Griffiths against her. She says, and this is in paragraph 14: “Some of their communications suggest Mr [D.E.] and Mr [B.C.], highly likely complained to the police about me post-employment just like Ms Mareuge-Lejeune did. I get a disclosure and barring check from my employments and they seem to have wanted to create suspicion about me after I left the job. They used the notion of parenting and vulnerability of children to attack my personality, prospects and livelihood.”g. She then complains that the respondent shared sensitive information about her without checking the identity of the person to whom they were sending it. She refers in relation to this to the forwarding a payslip to Mrs Griffiths and alleging that they had given her disciplinary warnings when she says that that was untrue. In reality, it is difficult to see that this is different to information she may have discovered when finding out about the letter of October 2018 because the letter refers to those details.h. And in paragraph 18 of the particulars of claim there is an allegation that reads as follows: “Mr [B.C.] made degrading comments about women during my employment. He was trying to teach the children supremacy over females even at their young age. He likened himself to a chicken husband in relation to the nurses in the hospital he part-manages nurses. He laughed about “terrorizing chickens” he ridiculed women such as the other nannies they employed, Mr [D.E.’s] female friends, the surrogate mother who carried the twins. His attitude towards me was derogatory, rude and verbally aggressive. Mr [B.C.] looked down upon Turkish and Kurdish people where this ethnic group formed the biggest subgroup in the community where they lived. He had a hierarchical view of races which he used as a basis for relating to people.”[21]There is then the application to amend the claim to allege that the detriment by the respondent filing a complaint of harassment with the police against her on 15 April 2020. It may be that that is the date on which the claimant alleges she found out from the police about the actions of which she complains.[22]The racial group that the claimant relies on is that she is Kurdish. The victimisation claim 7 ph judgment + cm Nov 2014 wip version[23]The alleged protected act is not particularized in the claim form. As explained to me the claimant relies upon her claim against Mrs Griffiths in the London Central Employment Tribunal. She told me, although I have not seen any paperwork connected with this claim, that it was originally included allegations of discrimination (and referred to a race discrimination claim) but by September 2018 she put it, “It had been decided” that it would be a claim of failure to pay national minimum wage. I asked her whether she was going to to be able to prove that the respondents knew that it had been an Equality Act 2010 claim at some point and the claimant replied; “not unless they cooperate and tell me”.[24]She sought to argue that she had been subjected to a detriment on the grounds that she had brought a National Minimum Wage Act 1998 claim against Mrs Griffiths (hereafter referred to as the NMW Act 1998). This is not how the claims are articulated in the present claim form. She would need to bring a claim alleging a breach of s.23 of the NMW Act 1998. The claim would be brought under ss.24(1) and (2) of the NMW Act 1998. By reason of s.24(2) of the NMW Act 1998, the provisions of s.48 of the ERA apply. Therefore, any such claim should have been presented within the time limit specified under s.48(3) of the ERA. In other words the Tribunal may not consider a claim of breach of s.23 of the NMW Act 1998 brought more than 3 months of the act complained of unless it was not reasonably practicable to do so and the claim was presented within a reasonable further period. I am not aware of any authority that deals with the question whether such a claim can be brought in relations to post-employment detriments but that is not something which needs to be considered at this stage.[25]On a fair reading of the claim form as a whole, in particular paragraph 17 which refers to the actions being “post employment victimisation, harassment and discrimination […] covered by Equality Act 2010 and EHCR (sic)” my view is that there is presently no claim of unlawful detriment on the ground that action was taken or was proposed to be taken by or on behalf of the claimant with a view to enforcing the right to be paid the national minimum wage of contrary to s.23 of the National Minimum Wage Act 1998. The reference is to a victimization claim under the EQA 2010 and not to a detriment claim under the NMW Act 1998.[26]The claimant is presumed to have intended that any acts that she complains about, which post-date the bringing of the claim against Mrs Griffiths, were acts of victimization contrary to s.27 of the EQA. Those are the same allegations relied upon as post-employment acts of detriment on grounds of protected disclosure. The sex discrimination, race discrimination and harassment claims[27]The claimant confirmed during the course of the hearing that this related to paragraph 18 of the particulars of claim alone which I have already quoted. She alleges that those were breaches of s.13 and 26 of the EQA 2010. They are therefore subject to the time limit set out in s.123 of the same Act. Whistleblowing 8 ph judgment + cm Nov 2014 wip version[28]The claimant alleges that she was subjected to dismissal and detriment because of a disclosure of information that she had made in March and then again in May 2017. She alleges that she called the NSPCC telephone line and made serious allegations. The detail of what she said to the NSPCC in those calls has not been gone in to today. If there is a full merits hearing in this matter the employment tribunal would have to consider whether or not she made a disclosure of information which, in the reasonable belief of the claimant, was in the public interest and tended to show that a crime had been committed, or was being committed, or, alternatively, that the health and safety of another had been, or was being, endangered.[29]I have not explored with the claimant in detail which particular sub-section of section 43(B) she was relying on, but the way that the communication to the NSPCC was described by both parties has the potential to amount to a disclosure of information that falls within 43(B)(1)(a) – that a criminal offence is being committed. As I say, I do not need to decide that today as it is not relevant to either issue that I have to decide. Therefore, it seems that the claimant will be relying upon having made a qualifying disclosure to a prescribed person in accordance with s.43(F) of the ERA. She had made no previous communications to the first respondent of substantially the same matters and, indeed, said to me that she had been told not to do so.[30]Since she is relying upon s.43F ERA, the claimant needs, in addition to the usual elements, to show that she reasonably believed that the information disclosed and any allegations contained in it are substantially true. If she were unable to do that, she would not succeed in her argument that the communication of information was a protected disclosure. The NSPCC are prescribed in the schedule to the relevant statutory instrument (SI 2014/2418) for matters that are set out in the schedule and the claimant will need to show that she reasonably believed that it fell within their remit. Again, that is not a matter which I need to determine today but, based upon the description of what was communicated, it seems potentially to fall within the remit of the NSPCC. Applicable Time Limits[31]Having explored the nature of the claims brought by the claimant, it therefore seems to me that the following protected disclosure claims are subject to the time limit test of reasonable practicability:a. Post-employment whistleblowing detriment claims brought under s.48 of the ERA 1996. The specific acts relied on would appear to be the following: i. The September 2018 letter that was disclosed to the claimant in October 2018. ii. Potentially, actions separate to and postdating that letter prior to 1 November 2019. The claimant’s description of what these acts might be was vague and overlapped with the detail in the 2018 letter. The principal additional information – as pleaded – is that the respondents informed Mrs Griffiths that the police had told them to dismiss her. 9 ph judgment + cm Nov 2014 wip version iii. Supporting her next employer, Mrs Griffiths, in the employment tribunal claim between the claimant and Mrs Griffiths. iv. Providing information in support of their own application for a Parental Order to the Family Division about the claimant that was untrue. v. Sharing sensitive information about the claimant to Mrs Griffiths without checking that Mrs Griffiths was a former employer. vi. Reporting the claimant to the police and using information from another employer that was false (referred to in paragraph 14 of the narrative particulars). If the amendment is permitted, then that would be another instance of the same type of behaviour.b. A claim under s.103(A) of the ERA 1996 of an automatic unfair dismissal.[32]Furthermore, the claimant complains of underpayment of national minimum wage. The claimant argues that she was contracted to take an unpaid lunch break but, in reality, she was unable to take it and was, therefore, paid less than national minimum wage. This is the matter that was the subject of an HMRC investigation that made an award against the respondent that they have satisfied. According to the respondent in the ET3, the claim was raised in December 2018, investigated and the claimant was awarded £52.72 on 30 April 2019. They argue that the claimant should not be permitted additionally to complain about the same alleged breach of s.1 of the NMW Act 1998 to the Employment Tribunal.[33]The complaint could either be brought as an unauthorized deduction from wages claim or as a breach of contract claim under art.3 of the Employment Tribunals (Extension of Jurisdiction) Order 1994. As an unauthorized deduction from wages claim it is brought under s.23 ERA 1996. In the case of the latter, the complaint has to be brought within three months of the date of the last deduction – in the present case that would be within three months of the last payment of salary/wages. The ET has no jurisdiction to hear a complaint brought more than three months unless it was not reasonably practicable to bring it within time and it was brought within a reasonable further period. In the case of a complaint under art.3 of the Extension of Jurisdiction Order 1994, the complaint must be brought within three months of the end of the employment, unless it was not reasonably practicable to do so. Therefore exactly the same questions arise.[34]I set out the statutory provisions relating to time limits from the EQA 2010 below. They are very different to those found in the ERA 1996 or the Extension of Jurisdiction Order 1994. Claims to which that, more flexible, time limit applies include complaints of direct race and sex discrimination (under s.13 of the EQA) and sex and race related harassment (contrary to s.26 of the EQA) as set out in para.18 of the particulars of claim (see paragraph 20.h. above). The victimisation claims (contrary to s.27 of the EQA) should also have been brought within the time limit set out in s.123 of the EQA. Law Relevant to the Open Preliminary Hearing 10 ph judgment + cm Nov 2014 wip version[35]The power to strike out a claim on the ground that it has no reasonable prospect of success comes from rule 37(1)(a) of the Employment Tribunal Rules of Procedure 2013. It is a power to be exercised sparingly, particularly where there are allegations of discrimination. In the case of Anyanwu v South Bank University [2001] IRLR 305 HL, the House of Lords emphasised that in discrimination claims the power should only be used in the plainest and most obvious of cases. It is generally not appropriate to strike out a claim where the central facts are in dispute because discrimination cases are so fact sensitive.[36]That said, where it is plain that a discrimination claim has no reasonable prospects of success (interpreting that high hurdle in a way that is generous to the claimant), then the tribunal does have and, in a plain and obvious case, may use the power to strike out the claim so that the respondent and the tribunal system are not required to spend any more resources on a claim which is bound to fail.[37]Such as case might be one which the Tribunal has no jurisdiction to hear because it was not presented within the time specified. For discrimination, harassment and victimisation claims that means the time limit provided in s.123 of the EQA. For present purposes, that section provides that, subject to the effect on time limits of early conciliation, proceedings on a complaint within Part 5 of the EQA (which relates to employment) may not be brought after the end of, “(a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.”[38]The discretion in s.123(2) to extend time is a broad one but it should be remembered that time limits are strict and are meant to be adhered to. The burden is on the claimant to persuade the Tribunal that the discretion should be extended in her favour: Robertson v Bexley Community Services: [2003] I.R.L.R. 434 CA. There is no restriction on the matters which may be taken into account by the tribunal in the exercise of that discretion and relevant considerations can include the reason why proceedings may not have been brought in time and whether a fair trial is still possible. The tribunal should also consider the balance of hardship, in other words, what prejudice would be suffered by the parties respectively should the extension be granted or refused?[39]In British Coal Corporation v Keeble [1997] IRLR 336 the EAT advised that tribunals should consider, in particular, the following factors:(a) the length of and reasons for the delay;(b) the extent to which the cogency of the evidence is likely to be affected by the delay;(c) the extent to which the party sued had cooperated with any requests for information;(d) the promptness with which the claimant had acted once he or she had known of the facts giving rise to the cause of action; and 11 ph judgment + cm Nov 2014 wip version(e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she had known of the possibility of taking action. 29. This was reiterated by the Court of Appeal in Southwark London Borough Council v Afolabi [2003] I.R.L.R. 220 CA and, more recently, in Adedeji v University Hospitals Birmingham NHS Foundation Trust [2021] EWCA Civ 23. However, the factors to be taken into account depend upon the facts of a particular case. It is not necessary that the Tribunal should be satisfied that there is a good reason for the delay before finding that it is just and equitable to extend time although the explanation will always be relevant: Abertawe Bro Morgannwg University v Morgan [2018] I.C.R. 1194 CA. Furthermore, one of the most significant factors to be taken into account when deciding whether to set aside the time limit is whether a fair trial of the issue is still possible (Director of Public Prosecutions v Marshall [1998] ICR 518). In Baynton v South West Trains Ltd [2005] ICR 1730 EAT, it was observed that a tribunal will err if, when refusing to exercise its discretion to extend time, it fails to recognise the absence of any real prejudice to an employer. This is part of considering the balance of prejudice and in doing so, the Tribunal may have regard to the potential merits of the claim: Rathakrishman v Pizza Express (Restaurants) Ltd [2016] I.R.L.R. 278. There is prejudice to a respondent having to respond to an apparently unmeritorious claim which is out of time. Conversely, there is prejudice to a claimant in being deprived of the opportunity to litigate an apparently meritorious one.[40]Claims of unauthorised deduction from wages under s.23 of the ERA, detriment under s.44 and automatically unfair dismissal brought under s.103A are all subject to the same time limits. To avoid repetition, I refer to that applicable to s.103A - s.111 of the ERA. Again, by reason of s.111 (2 A), subject to the effect of early conciliation, “the employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal(a) before the end of the period of three months beginning with the effective date of termination, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaints to be presented before the end of that period of three months.”[41]When the Tribunal is considering whether it has jurisdiction to consider a complaint which was not presented within the applicable three months’ time limit (as extended, if applicable, by reason of early conciliation), it must first consider whether it was reasonably practicable for the claim to be presented within three months of the act complained of and, if not, consider whether it was presented within a reasonable period thereafter. The burden of proof in relation to both stages is on the claimant. ‘Reasonably practicable means more than merely what is reasonably capable physically of being done but less than simply reasonable. When considering the claimant’s explanation for the delay, the employment tribunal needs to investigate what was the substantial cause of the claimant’s failure. Examples of situations where it might not be reasonable practicable to present the claim in time were given by Brandon L.J. (as he then was) in Walls Meat Co Ltd v Khan [1979] I.C.R. 52 CA at paragraph 44, ‘‘The performance of an act. . .is not reasonably practicable if there is some impediment which reasonably prevents, or interferes with, or inhibits, such 12 ph judgment + cm Nov 2014 wip version performance. The impediment may be physical, for instance the illness of the complainant or a postal strike: or the impediment may be mental, namely, the state of mind of the complainant in the form of ignorance of, or mistaken belief with regard to, essential matters. Such states of mind can, however, only be regarded as impediments making it not reasonably practicable to present a complaint within the period of three months, if the ignorance on the one hand or the mistaken belief on the other, is itself reasonable. Either state of mind will, further, not be reasonable if it arises from the fault of the complainant in not making such enquiries as he should reasonably in all the circumstances have made, or from the fault of his solicitors or other professional advisers in not giving him such information as they should reasonably in all the circumstances have given him.’’ Date of knowledge and reasons for the claimant’s delay[42]The claimant says that she received a letter that the respondents had sent to her, subsequent employer, Mrs Griffiths, when she received disclosure of documents within that litigation in about October 2018. It was also in the final hearing bundle in November 2018. So far as material it reads as follows: “In response for your request for clarification regarding a PAYE tax of £280.40 regarding the employment of Mrs Ilkay Cetin please find her latest payslip in attachment where you can see evidence of that payment. I wish to take the opportunity to draw your attention to the circumstances around her employment and why her contract was terminated. During the interview she gave us a good impression and she showed us some reference letters but she was unable to provide us with any contact numbers of her ex employer. The reason she gave is that her last employer was “divorced mum who was abusive towards her son and therefore she thought it would not be appropriate if we contacted her for a job reference”. We decided to give her the job but we started to have concerns about her performance and we raised them with her. Shortly after we discussed those concerns with her the police visited our house. The reason was that she had reported us to Social Services alleging child abuse. The police said that there were many inconsistencies and fabrications in her report but still, the children had to be examined in the hospital. The charges were dismissed but at the time we went through the Parental Order process in order to have the parental rights of our twins who were born through surrogacy. Ms Cetin’s allegations risk to compromise the Parental Order and caused us profound distress and humiliation. In the following months we have received a couple of emails from Ms Cetin expressing unhappiness about her dismissal and how this would have a bad impact on our children. Soon after receiving these emails we have decided to move to another borough as we were concerned she had our address and she knew our children’s habits. On 25 May 2018 we have received a third email, but this time asking for £1,815.56 due to “owed lunch breaks” during her employment with us the previous year. She also stated in this email that “this calculation doesn’t include the help I offered on weekends and holidays. I did extra on those days so the children couldn’t suffer negligence as I consider it my gift to them”. Please do not hesitate to contact me in order to get further clarification about this matter.” 13 ph judgment + cm Nov 2014 wip version[43]The claimant accepts that she knew in general terms that there is a three-month time limit for presenting employment tribunal claims at least by May 2018 which was when she presented the claim against Mrs Griffiths.[44]It was clear from her oral evidence that the claimant had known about the allegations that she raises in paragraph 18 of her claim form, at the time she left employment because she says that they happened during the course of employment. I asked the claimant to explain why she had not presented her claim about those matters sooner. Her explanation was that this: “…is difficult to prove, there are a lot more important matters, these things happened, I can say I didn’t bring them before because of the nature of what I’m saying here they are part of what happened and they are important in that sense.”[45]It therefore seems to me that the claimant knew everything that she needed to know in order to bring a complaint based on the matters that occurred during the currency of her employment, both in terms of the acts alleged and the ability to complain about them, at the time that she left and certainly no later than May 2018 when she decided to bring the complaint at the employment tribunal against a subsequent employer.[46]At the time of her dismissal she knew that the police had visited the home because of her report to the NSPCC. She was present. She says that she was given alternative reasons for her dismissal, namely that she had not accompanied the family on holiday to Spain and that she was not getting on in her job. She had not told the respondents about her report to the NSPCC and the gist of what she said was that at that point she therefore believed they were unaware of it and did not have the information from which to suspect that they had dismissed her because of it.[47]The respondents allege that the police told them at the time that they came and investigated but the claimant has denied this. She denies that she knew enough by the time of the October 2018 letter to challenge the reason she was given for her dismissal. She expanded on that in her letter to the tribunal, 18 June 2020. She says in that (see her paragraph 2) that she is asking for information against the respondents:a. At para.2.a. she stated that the former employers claim that the respondents volunteered a vast amount of information because they think it’s a public service to warn them against her and she would like the respondents to confirm or deny it and give details.b. At para.2.b. she says, “My other former employer say that the respondents claim they were told by the police to sack me immediately”. She claims that the police divulged who had reported the respondents for child abuse - “I would like them to confirm or deny and explain the circumstances around these conversations”.c. At para.2.c. “My other former employer claims that the respondents have been unable to obtain a Parental Order until she talked to their social workers and, in essence, smeared my name to help them. I would like 14 ph judgment + cm Nov 2014 wip version the respondents to confirm, deny and explain the circumstances around these events”.d. Para.2.d. “The respondents were contacted for the first time by my other former employer when I brought a claim against them nearly two years ago. The respondent shared my confidential information and documents with these people. They gave a defamatory letter that made allegations against me. It is undated. I would like them to explain the circumstances surrounding the events.”[48]This is not information which the claimant is lacking in order to make her allegation against the respondents. She complains that the respondents have not put in a full defence stating which of her allegations they admit and which they deny. She seeks to find out their case but already has the information available which forms the basis of her allegations. It is hearsay information which she has gleaned from the other Tribunal proceedings against Mrs Griffiths and which has led her to make a claim against these respondents.[49]However, in her further and better particulars, the claimant does argue that she found out more information about the alleged activities of these respondents on 1 November 2019 in a letter Mrs Griffiths sent asking for reconsideration of a costs order. She refers (paragraphs 1 and 2) to allegations behind her back to the authorities ie.e the police; misleading the Family Division. Furthermore, she complains that the respondents refused a request that they confirm that they were the authors of the letter which I have quoted from above and complied only in part with a DSAR. The respondents say the DSAR was on 30 October 2018 and that the ICO took no action against them. The claimant alleges in FBPs para.4 that additional information was provided after her complaint to the ICO and dates these matters to spring and early summer of 2019.[50]In oral evidence, the claimant gave further information about legal advice that she had received and said that she had been unaware until November 2019 that it was possible to complain about post-employment detriment on grounds of protected disclosure and that she had found out by reading a LAG book in October 2019. She had been to a number of different advisers. She mentioned having obtained advise through the Free Representation Unit as it was then called and also, she paid a solicitor on exchange of documents in October 2018 when she received the letter that I have quoted from. The claimant’s evidence was that she only understood that there was a right to complain about a data protection breach and did not understand it was possible to complain about postemployment detriment on grounds of protected disclosure.[51]It is argued by the respondent that in reality the claimant knew everything by way of the October 2018 letter that they had communicated to Mrs Griffiths and that there was nothing of substance further that she found out through the reconsideration application.[52]I explained to the claimant and she accepted that the Employment Tribunal does not have jurisdiction specifically under the Data Protection Acts 1998 or 2018 or under the Human Rights Act 1998 if allegations of contraventions of those Acts do not additionally amount to breaches of Acts under which the Employment Tribunal does have jurisdiction. 15 ph judgment + cm Nov 2014 wip version
Conclusions
[53]I accept the respondents argument that the letter which she received through disclosure in her Employment Tribunal litigation against Mrs Griffiths contained enough information to enable her to know the following information which forms the essential basis of her present complaints. By reason of that, and her knowledge of events at the time, the claimant was aware no later than Octobera. That the police had visited their house because the claimant had reported the respondents for child abuse. These allegations risked compromising the parental order application.b. Mr D.E. had apparently authored a letter to Mrs Griffiths outlining this information because he wanted to “draw your attention to the circumstances around her employment and why her contract was terminated.” This leads to a potential inference that the reason for the dismissal was the matters set out in the letter (including knowledge that the claimant had made an allegation of child abuse against the second respondent) and not the reasons which the claimant had been originally given.c. By this letter, Mr D.E. was providing information to Mrs Griffiths.[54]It seems to me that the real reason why the claimant did not bring the central claims of automatically unfair dismissal and detriment arising out of any correspondence from the respondents to Mrs Griffiths as soon as she was aware of the correspondence was that she may not have known that it was possible to complain of post-employment detriment on grounds of whistleblowing. However, she had a number of opportunities and, indeed, did take legal advice. She knew through the receipt of the October 2018 letter all of the information essentially about which she now complains and certainly, she knew enough information to be able to raise the allegation that the dismissal was because of her report to the NSPCC. Any reasonable ignorance was removed at that point. Even in relation to the alleged detriment by making a complaint to the police she says in her claim form “some of their communications suggest Mr [D.E.] and Mr [B.C.] highly likely complained to the police about me post employment” which suggests that it was the correspondence within the litigation which lead to this inference. Therefore, it was incumbent upon her to bring proceedings within a reasonable period after that point because, at that point, her ignorance of what she needed to know in order to bring a claim was lifted.[55]It therefore seems to me that she was aware of all of the matters giving rise to the post-employment detriment claim at the time she found out about the actions complained of. Although it may not have been reasonably practicable for her to complain of automatically unfair dismissal on grounds of protected disclosure within three months of the dismissal, I do not think that she has brought a claim within a reasonable period of October 2018, when she had a basis for thinking that the dismissal was because of her complaint to the NSPCC. This is particularly so, given what she knew about the timetables for bringing unfair dismissal claims because she would certainly have known that she had the right to bring an unfair dismissal claim against the respondents. 16 ph judgment + cm Nov 2014 wip version[56]I conclude that it was reasonably practicable for the complaints of unlawful detriment on grounds of protected disclosure and automatically unfair dismissal to have been presented within three months of October 2018 when the claimant received the letter from Mr D.E. to Mrs Griffiths which removed any reasonable ignorance about the matters which underpin her right to claim. The claimant infact contacted ACAS on 11 November 2019, nearly 12 months later.[57]It was reasonably practicable for the complaints of unauthorized deduction from wages to be brought within three months of the last payment of her wages approximately the termination of employment in 2017. Even taking into account ignorance of the legal right to complain about the alleged failure to allow her to take unpaid lunch breaks and the impact of that upon her rate of pay, there is no satisfactory explanation of her failure to present a claim within three months of her actual knowledge of the potential infringement, which was in about May 2018. She chose to complain to HMRC but could additionally have brought ET proceedings at that time.[58]The complaints of sex and race discrimination and harassment relate to allegations that date from within the employment itself. They must, therefore have predated 23 May 2017 (the claimant dates them from shortly after the return from Spain) but the claimant contacted ACAS on 11 November 2019 more than two years later. The is no coherent explanation as to why the claimant did not complain at the time or within three months of her dismissal. These factual allegations do not form any part of the request for information of the respondent and therefore the claimant’s allegation that they have not cooperated with her request for information does not apply. It seems to me that there is likely to be prejudice to the respondents in having to respond to allegations made for the first time so long after the event. It is not that I make a presumption that the cogency will be affected without evidence to support that, it is that, the particular circumstances of the combination of the delay before making the allegation and lack of previous complaint which would have alerted the respondent to the need to make investigations mean that the reliability of the evidence is likely to have been adversely affected. It seems to me that the balance of prejudice is against exercising my discretion in the claimant’s favour.[59]The claimant also complains about post employment victimization on the ground of the alleged protected act of her litigation against Mrs Griffiths which is said, initially at least, to have included a discrimination element. At this preliminary hearing I am concerned with whether those claims have been presented within time. I am not primarily concerned with the prospects that the claimant would be able to show evidence from which it might be inferred that the reason why, for example, Mr D.E. and the second respondent wrote to Mrs Grifitths was on the ground that the claimant had brought a complaint under the Equality Act 2010 against Mrs Griffiths rather than, for example, that she had made allegations of child abuse against them in the past. The claimant frankly said that she would be relying upon the respondents’ cooperation to admit that they knew that the claim against Mrs Griffiths was a protected act under the EQA. However, it is a relevant consideration that the merits of that argument appear weak. That is because, when balancing the relative prejudice between the claimant and respondent, there is prejudice to a respondent in having to respond to an apparently weak claim. That should be set against the public interest in discrimination and victimization claims being fairly and openly adjudicated upon 17 ph judgment + cm Nov 2014 wip version and the clear prejudice to the claimant if she is unable to pursue her claims. This prejudice is tempered by the apparent improbability of the respondents having acted on grounds of the nature of the litigation against Mrs Griffiths when such personal and disruptive allegations had been made by the claimant about them.[60]As I found above in relation to the protected disclosure claims, I find that the claimant knew all of the facts which she needed to know in order to bring a victimisation claim at least by the October 2018 receipt of the letter from the respondents through disclosure in the other proceedings. Taking all of the above matters into account, my conclusion is that it would not be just and equitable to extend time in relation to the victimization claims.[61]Since I have concluded that the claim is out of time and should be struck out because the ET has no jurisdiction, I do not need to go on to consider the application to amend.
Conclusions
[1]The claimant’s reasons for her application for a reconsideration of the restricted reporting order (hereafter referred to as a RRO) may be summarized as follows:a. the parties had not been notified about the possibility of a RRO being implemented and it was not possible to prepare for the application;b. the order was unnecessary due to the anonymity order;c. it further limits freedom of expression;d. the respondents’ actions in sharing their children’s information meant that it was an unreasonable infringement of the right to freedom of expression and not reasonably necessary to protect any human rights of the children; ande. In her email of 1 August 2021, the claimant (at paragraph 25) argues that there was no press at the hearing or another reason what would necessitate the RRO.[2]The claimant’s reasons for her application for a reconsideration of the anonymity order and the refusal of an order anonymizing her own identity may be summarized as follows:a. She states that she considers that the respondents’ opposition to her application for anonymity is in order to label her as someone who reports people randomly for child abuse so that no one would believe her in the future and to make her unemployable.b. Some of the information in the judgment would be personal which she had had to divulge in order to “defend my claims I have to divulge information but the way this information is used in the judgments is out my control”. This, she alleges, put pressure upon her to opt out of asking for the written reasons of the decision.c. She makes complaints, in essence, about the sufficiency of the police investigation and defends her actions in reporting the respondents to the police as being her duty as a nanny. She complains that parents would inevitably be protected in such a scenario whereas the nanny runs the risk of being identified.d. She argues that there is an inconsistency in the respondent’s position that identifying her would not lead to identifying the children whereas descriptions of them as “theatre/ballet enjoying gay” would identify them.e. She argues the company should not be anonymized because it just exists for avoiding paying tax.f. She alleges that the fact that counsel for Mrs Griffiths and I were, prior to 7June 2021 when I left the Bar, members of the same chambers “creates a strong possibility of the claims having been discussed between professionals. Judge George could have been offered to represent them which would mean she would read a case file” and suggests that I changed my mind on the applications to strike out the claim between November and June 2021. This allegation appears in paragraphs 11 & 12 of her email of 7 June 2021 and also in paragraph 22 of her email of 5 July 2021.g. She relies upon alleged new evidence submitted by email dated 12 July 2021. Those are police notes from around the time they visited the respondents in May 2017 for which she offers some explanations but also states to be largely incorrect; “The notes seem to have been designed to cover their own back and reveals the investigation had not been done in a timely manner and that the Respondents were given a month’s notice before anything was done.”h. She alleges (para.9 of the email dated 12 July 2021) that I excluded some of the evidence and her explanations and argues that the prospect of the strike out judgment in this case being available online is worrying in terms of safety for her.i. She argues that in para.15 not being anonymized would limit what she could share to defend her claim. She asked for temporary anonymity until her claims were concluded and worried that the judgment would help her other employers and suggests that my reference of evidence is unbalanced. She argues that the failure to anonymise her in these proceedings would interfere with her right to a fair trail on her other claim.j. In para.23 of the claimant’s communication of 1 August 2021 (which is on the face of it an application for reconsideration of the judgment striking out the claim), the claimant makes the following comment, “At the hearing when she read out the relevant legislation for anonymity order she mentioned the term ‘identifying person’ who would have been me. I made this argument at the time and she removed that wording from the written reasons that are sent to us, presumably because it would make it easier for me to appeal.”k. In her email of 15 August 2021, she argues that the respondents’ identities are discoverable by her connection to the other litigation she is pursuing against a different former employer in London Central Employment Tribunal and, apparently, argues that the rule 50 orders are unnecessary because the respondents can be identified by other means. She states that the existence of the RRO in these proceedings was mentioned at a hearing in that claim on 22 July 2021.l. She also refers to documents apparently available online which arise out of litigation in the United States of America which identify the respondents. “Considering the Respondents created a case law in US and their names have been displayed on my claim in UK, the Respondents’ names would have seen (sic), downloaded, shared, used and published on other sites many times since the 14th of July 2021.”m. She argues that there is a public interest in keeping public the names of the respondents whom she describes as having “a history of litigation with their child related employees and they breach their contracts.”[3]The claimant’s application for a reconsideration of the RROs has no reasonable prospect of success because:a. In the letter sent by the Tribunal to the parties on 1 December 2020 by which the parties were informed of my concern that, without use of the Tribunal’s powers under rule 50 of the Employment Tribunals Rules of Procedure 2013, the children’s right to anonymity might be infringed, I invited the parties to say whether they intended to apply for “any other order restricting the public disclosure of any other aspect of these proceedings”. Although the parties did not apply for a restricted reporting order, this raised the prospect of others of the orders available to the Tribunal being made.b. I considered that, in the circumstances of the case – including those mentioned in paragraph 17 of the written reasons, and given the respondents’ allegation that potentially identifying matters about them were publicized by the claimant who is active online, anonymity orders were insufficient to provide the children with the protection from identification intended by s.1 of the Sexual Ofences (Amendment) Act 1992. The additional interference with the Art.10 right to freedom of expression was proportionate, in my view, to the children’s right not to be identified as alleged victims of a sexual offence and there is no reasonable prospect of claimant’s submissions causing me to change my view on that.c. The fact that no members of the professional press were present at either the hearings is not something which weighs strongly against the need for RROs in the circumstances of citizen reporting and the claimant’s activities in publicizing details of the litigation online.[4]The claimant repeats her argument that the respondents’ objections to her being anonymized were motivated by a desire on their part, in effect, to make her unemployable. I also note her argument set out in paragraph 2.c. above. This seems to me to be slightly different to the way that she argued her need for anonymity at the preliminary hearing where she said that she did not know which aspects of her private life were potentially affected. The right to seek employment seems to me to be an aspect of private life and the right to protection in employment and in seeking employment as a whistleblower or former whistleblower seems to me potentially to engage both art.8 and art.10 of the European Convention on Human Rights. The claimant does not explain why this argument was not raised before. These are complex matters of law and some leniency is due to her as a litigant in person. The argument, as I understand it, is that any nanny who reports such wrongdoing to the relevant authorities and is victimized for it inevitably faces the dilemma of whether or not to seek to enforce their employment rights, knowing they would then be revealed as someone who has reported child abuse against their employers in the past when those employers, as parents of the alleged victim(s) enjoy anonymity. Although I could not reasonably expect the legal basis of the claim to be known to the claimant, the concern and the argument could, in my view, have been articulated at the time of the hearing on 2 June 2021. The question for me now is whether there is a reasonable prospect of my decision that she should not benefit from anonymity being varied or revoked. I do not think that there is such a reasonable prospect because the claimant (as set out in paragraph 14 of the written reasons) is a prolific blogger who chooses to reveal information about her litigation with previous employers which would be available to potential future employers. Therefore, although, in principle I can see that there would be an argument that former whistleblowers’ art.8 rights might be interfered with, I see no reasonable prospect of this argument causing me to vary or revoke my decision in the present case.[5]As to the other arguments raised by the claimant in relation to the anonymity order which was made and the refusal of anonymity for her:a. It was the claimant who requested written reasons. She was not deterred from doing so by the lack of anonymity. There is no explanation of what the personal information is that she has to divulge and I do not see that she is in a different position in that regard to any other comparable litigant.b. Complaints about the sufficiency of the investigations by the police and other authorities are not relevant to the question of whether the parties in this case should be anonymized. The reason for the orders made was in order to give effect to the aims of parliament in passing s.1 of the Sexual Offences (Amendment) Act 1992.c. The children’s right is not to be identified as the alleged victims of an alleged sexual offence and the risk of identification comes if they are identified as connected with this claim which, as a protected disclosure claim, necessarily requires explanation of the nature of the alleged protected disclosure. The arguments that Mr B.C. and Mr D.E. are identified in online reports of other proceedings – whether in this territorial jurisdiction or that of the United States of America, and that, therefore, the restriction on publication of their identity is not justified in these proceedings overlooks this fact. It is not whether Mr B.C. and Mr D.E. are identified online in connection with other matters which risks infringing the children’s rights, it is whether they are, by name, identified as parents of children about whom these allegations are made.d. The argument that it is inconsistent for the respondents to argue that the children could not be identified from her own name was one which she raised at the hearing on 2 June 2021 and which I dismissed on that occasion. She raises no different or additional argument in the reconsideration application.e. The rights specifically protected under s.1 of the Sexual Offences (Amendment) Act 1992 seem to me to outweigh any public interest in it being reported that the claimant alleges that she was employed by a company as a vehicle to put personal expense through accounts of a corporate body which had no interest in her services. This allegation was not one which, in any event, was relevant to the underlying issues in the case and not one which, had the claim come to final hearing, would have been considered by the Employment Tribunal.f. Taken as a whole, I presume that, by the section of her email of 1 August 2021 under the side heading “Bias”, the claimant intends to allege actual or apparent bias on my part. Much of what she says concerns her claim against Mrs Griffiths, whose actions are not relevant to the issues in the present case. Further arguments, in essence, amount to a complaint that I accepted the respondents’ arguments and supposition. However, it is right that I address her allegation set out in paragraph 2.f. above. The only knowledge I have about the dispute between these parties or that between the claimant and Mrs Griffiths I have obtained in my capacity of (as it then was) fee-paid employment judge from this claimant and these respondents through conducting the hearings on 27 November 2020 and 2 June 2021 and deciding the relevant issues at them. Until reading the claimant’s applications for reconsideration, I had no knowledge of the identity of Mrs Griffiths’ representative at any stage in any proceedings in London Central Employment Tribunal. It is true that Mr Wilson, who acted for Mrs Griffiths, and I were, until my appointment with effect from 7 June 2021, members of the same chambers. We have no business or personal relationship beyond the fact that we were colleagues in chambers. In most circumstances, an objection to a judge’s involvement in a case, could not be soundly based solely upon that judge’s membership of the same chambers as an advocate engaged in a case before them: Locabail (UK) Ltd v Bayfield Properties Ltd [2020] IRLRL 96, CA. This is even more the case when the objection is that the judge is in the same chambers as an advocate engaged for a third party involved in separate litigation against one of the parties before them. There is, in my opinion, no possibility that a fair-minded and informed observer would conclude that the facts in this case give rise to the real possibility that I was biased. There is no reasonable basis for an allegation of actual or apparent bias.g. Although it appears that the new evidence submitted by email dated 12 July 2021 is, quite possibly, evidence which could not with reasonable diligence have been available at the original hearing, the claimant appears to be putting forward evidence which she herself regards as “largely incorrect”. There is no reasonable prospect that this evidence would cause the decision to be revoked.h. In terms of the concerns she raises about her safety, I reflect on the arguments raised by the respondents which I referred to in paragraph 14 of the written reasons. Any argument the claimant raises about the impact upon her of publication of her identity has to be seen in the context of the information which she chooses to reveal through her blog. In those circumstances, I do not see that these arguments have a reasonable prospect of causing me to vary or revoke my decision on her application.i. I do not see how a judgment that she presented her claim out of time against these employers would interfere with her right to a fair trial in her other claim. There has been no determination of the substantive merits of her allegations in this case and no adverse determination in relation to her credibility.j. As to paragraph 2.j. above, the claimant is correct in her recollection that when I read out the terms of the anonymity order I initially read out that “identifying matter” meant ‘any matter likely to lead members of the public to identify him as a person affected by, or as the person making, the allegation’ This was a simple error on my part in reading out the standard wording which, as I explained at the time, was designed to cover the more common situation when the allegations which are the subject of the claim are allegations by the claimant of sexual misconduct against them and they are therefore the alleged victim. This is not the situation in the present case, hence my correction.k. As to the argument set out in paragraph 2.k. and 2.l. above, I refer to paragraph 5.c. above.l. As to the argument set out in paragraph 2.m. above, this may or may not be so, however it does not outweigh the public interest, recognized by parliament, in protecting the identities of alleged victims of sexual misconduct, especially when those alleged victims are minors. I confirm that this is my Reconsideration Judgment and Reasons in the case of Case No: 3325658-2019 Cetin and that I have signed the Judgment by electronic signature.
Conclusions
[1]The history of the litigation between the parties is set out in the reasons I gave for striking out the claims which were sent to the parties on 28 June 2021 to which I refer but which I do not repeat. That decision had been announced orally on 2 June 2021 and written reasons were requested by the claimant. The reasons incorrectly refer to the hearing date as having been 2 June 2020. Also on that date I decided applications by the respondents for anonymity and restrictive reporting orders under rule 50 and by the claimant for similar orders. I granted orders in favour of the respondent but refused the claimant’s application for reasons which were given orally and provided in writing. These were sent separately to the parties and as with the other reasons also sent on 21 June 2021 but again unfortunately they incorrectly referred to the hearing having taken place in 2020 when it in fact took place on 2 June 2021.[2]Following that hearing the claimant applied for the restrictive reporting order to be discharged and on 7 June 2021 applied for a reconsideration of my decisions. This was refused for reasons given in the judgment sent to the parties on 4 November 2021.[3]The respondents applied for a Preparation Time Order against the claimant on 12 July 2021. The bases on which the respondents argued the application were thata. that the claimant knew that her claims were out of time as she had submitted claims to at least two former employers;b. that the claim was vexatious, the claimant’s main motivation being to create as much harm and disruption as possible to the family, andc. that Mr DE, as a contractor paid on an hourly basis, had incurred a loss of wages in having to take time off from work to defend the claim on behalf of his husband and his company. He estimated that the time of preparation and the time spent at the hearings to be a total of 23 hours which he claimed at the then statutory rate of £38 per hour.[4]By an order sent to the parties on 4 November 2021 the claimant was ordered to provide a schedule of her income and outgoings, her assets and liabilities and the parties were directed to provide any additional written submissions in relation to the application for a Preparation Time Order by 2 December 2021. At that time, I directed that the application would be determined on written submissions after that date in the absence of any prior application for a hearing.[5]The claimant’s response to the Preparation Time Order application was sent on 18 November 2021. She declined to provide information about her income and expenditure and she argued that it was a breach of her Article 8 European Convention on Human Rights grant to a private life to have to provide it. Before me she argued that the respondents would share information about her income and outgoings with her former employer, who I refer to as Mrs Griffiths, and with whom she is still in litigation. She stated that any information would become publicly available on the Employment Tribunal Service website and so she was not willing to provide that information in order that it could be kept private. She has chosen not to provide it despite a Tribunal order to do so. However, that means that I will not be able to take her means into account if I conclude that the threshold is met for ordering a preparation time order. The reasons I do not take means into account are that I have not been asked to do so and that, despite the Tribunal requesting information from the claimant, I have not been provided with information about means to take into account.[6]The balance of her written submissions in respondent from 18 November 2021 tend to attack the decision that was made rather than engage with the arguments that were raised by the respondent in support of their application. The submission runs to six pages and 33 paragraphs. She does make the point that costs should not be used as a weapon to prevent employees from enforcing rights. Those are my words, not hers, but she clearly made that point and I accept it unreservedly. In the Employment Tribunal costs do not follow the event as they do in many other courts in the United Kingdom. It is the exception rather than the rule that Costs Orders or Preparation Time Orders are made and the basis on which such orders can be made is circumscribed by the rules. As Ms Cetin argues, employers are frequently in the position of having greater power or greater resources and should not be able to use the unjustified threat of costs to deter valid claims. The law relevant to the application[7]The power to order that one party pay the legal costs of the other is found in rule 76 of the Employment Tribunal Rules of Procedure 2013 (hereafter referred to as the Rules of Procedure). So far as is relevant, rule 76 reads as follows: “(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 seven days before the date on which the relevant hearing begins. (2) A tribunal may also make such an order where the party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of party.”[8]There are therefore two stages to determining an application for preparation time order, following the procedure set out in rule 77. First the Tribunal must consider whether the grounds for making a preparation time order in rule 76(1) exist and secondly, if they do, then the Tribunal must consider whether or not to make one. In deciding whether or not to make a preparation order, and if so, in what amount, the Tribunal may have regard to the paying party's ability to pay: rule 84 Rules of Procedure. As I have already explained, I have decided not to have regard to the claimant’s ability to pay because she has expressly declined to put me in a position where I can do so.[9]When deciding whether or not the litigant’s conduct of the proceedings has been unreasonable, the words of the rule are the starting point, remembering that, in the employment tribunal, a costs or preparation time award is the exception, rather than the rule. As Mummery LJ said in Barnsley MBC v Yerrakalva [2012] I.R.L.R. 78 CA at para.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 Mummery LJ’s judgment in McPherson v BNP Paribas [2004] EWCA Civ 586] 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.”[10]Further guidance about the correct approach to whether a litigant in person has acted vexatiously, abusively, disruptively or otherwise unreasonably in the conduct of the litigation is found in AQ plc v Holden [2012] IRLR 648 in paragraphs 32 & 33, “The threshold tests in rule 40(3) are the same whether a litigant is or is not professionally represented. The application of those tests may, however, must take into account whether a litigant is professionally represented. A tribunal cannot and should not judge a litigant in person by the standards of a professional representative. Lay people are entitled to represent themselves in tribunals; and, since legal aid is not available and they will not usually recover costs if they are successful, it is inevitable that many lay people will represent themselves. Justice requires that tribunals do not apply professional standards to lay people, who may be involved in legal proceedings for the only time in their life. As Mr Davies submitted, lay people are likely to lack the objectivity and knowledge of law and practice brought by a professional legal adviser. Tribunals must bear this in mind when assessing the threshold tests in [what is now rule 76(1)]. Further, even if the threshold tests for an order for costs are met, the tribunal has discretion whether to make an order. This discretion will be exercised having regard to all the circumstances. It is not irrelevant that a lay person may have brought proceedings with little or no access to specialist help and advice. This is not to say that lay people are immune from orders for costs: far from it, as the cases make clear. Some litigants in person are found to have behaved vexatiously or unreasonably even when proper allowance is made for their inexperience and lack of objectivity. But the tribunal was entitled to take into account that Mr Holden represented himself; we see no error in its doing so; and we do not accept that it misdirected itself in any way.”[11]The respondents complained in their written submissions that the claimant had failed to provide the detailed financial information that had been ordered and that she continues to be in breach of Tribunal orders. They argued that this was further unreasonable behaviour meriting a Costs Order. They also referred to a link to the claimant’s claim against Islington City Council, published on 2 January 2020, in Case No. 3312742/2020 which they argue dealt with the claim being out of time and relied on that as further evidence that the claimant as an experienced litigant who was guilty of unreasonable or vexatious conduct in the present proceedings because, they argued, she knowingly presented them out of time. On receipt of those submissions I decided to vary my order and listed it for a hearing at which their application could be considered and the parties were given notice of it on 4 March 2022. The claimant in the meantime had requested it be listed as a remote hearing, as in fact all of the hearings before me have been successfully conducted.[12]I have heard oral submissions from both parties. In her response to the first point that was raised by the respondent - that the claimant knew her claims were out of time - the claimant argued that time limits may in appropriate cases be extended. She reminded me that there is a different test for the extension of time in discrimination claims and therefore, particularly in discrimination cases, a litigant might commence a claim that was relating to an act more than three months before the date the claim started in the hope that an application for an extension of time on the just and equitable basis would be successful.[13]I refer back to the issues in the underlying case and to my decisions upon them. I concluded that it was reasonably practicable for the claims under the Employment Rights Act 1996 to be presented in time based upon the date of knowledge of the claimant of the matters that she required to claim. I did, in the course of that judgment, conclude that there was no reasonable prospects of the claim succeeding because I had made a finding about her date of knowledge of material matters that led to a conclusion about the Tribunal’s jurisdiction. This was not the same as these being claims that were doomed from the start. A hearing was needed to decide at what point the claimant had all of the information that she reasonably needed that would enable her to present her claim.[14]Furthermore, there was, as is argued by Ms Cetin, a victimisation and discrimination claim. I agree with the claimant that it is not unreasonable conduct for proceedings to commence claims which on their face are potentially out of time. It is quite often the case that such claims will require a hearing to determine whether the Tribunal has jurisdiction. In this case, the consequence to the claimant was that the claims were struck out. So it seems to me that this is not a reason to conclude that those claims were, as I said, doomed from the start or that it was unreasonable conduct of the claimant to present such a claim in the beginning.[15]The second point raised by the respondents is essentially that the claims were brought and conducted in a way that caused distress and were vexatious. They argue that this is part of a piece with claims that the claimant initiated in the High Court which, as they put in their original application, ignored findings of “police social services, doctors and High Court itself” to create a platform within which the claimant can continue to assert that the children of the family are in danger or were in danger at the time that she was working for the family. The respondents also complain that the claimant posts matters on her website concerning this case alongside matters concerning the claim against Mr and Mrs Griffiths and that leads to potential identification of these respondents despite the Anonymisation and Restricted Reporting Orders that have been made. It is argued by the respondents that this shows that the claimant’s approach to the litigation and to them is vexatious. The claimant argues that she is merely taking steps to defend herself when actions by these respondents taken because she says she reported them to the NSPCC have caused damage to her career and prospects.[16]Her response on 18 November 2021 contains a number of unsubstantiated accusations that the respondents have collaborated with other employers in the other litigation and her submissions to me today, despite my encouragement to her not to do so, repeated the same allegations. She persists in describing herself as being persecuted when it is she who brought this litigation. I take into account that a litigant in person cannot be expected to have the dispassionate and objective detachment of a professional qualified person in assessing a claim. Furthermore, a self-representing party may, understandably, be emotionally involved in the claim in a way that causes them to express themselves in heightened language and in a way that might be regarded as accusatory. However, for example, where the claimant says that the respondents want to be able to pursue her this, it seems to me, is quite the contrary to the actual position as would be obvious to anyone taking a rational and objective view of the evidence. The respondents want to be left alone by the claimant. She persists in the view that these respondents are actively working within other litigation to her detriment and describe es their conduct as ongoing. There is no evidence that has been shown to me to support these accusations which are bald assertions.[17]Throughout the litigation, the claimant’s applications and correspondence include allegations for which the claimant appears to have no reasonable evidential basis. Those are matters that she cites in paragraph 15 of her response to this application. Despite previous warnings, the accusations are repeated in that very response, accusations that the respondent kept her in terms of slavery and a description of the respondents as predatory employers. This is unreasonable and unjustified use of inflammatory and pejorative language.[18]The Court of Appeal in a case called Scott v Russell [2013] EWCA Civ 1432 cited the definition of vexatious given by Lord Bingham in Attorney General v Barker. According to Lord Bingham the hallmark of vexatious proceedings is that they have little or no discernible basis in law, that whatever the intention of the proceedings 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 differently from the ordinary and proper use of the Court process. This suggests that where the effect of the conduct falls within that definition it can amount to vexatious conduct in respect of the motive behind it.[19]I also think it is necessary to draw a distinction between proceedings that have been brought in order to be vexatious and proceedings which have been conducted in a way which is vexatious. It seems to me that the claimant has a genuine sense of grievance that a letter was sent by these respondents that was of assistance to Mrs Griffiths. That had an impact on her and that was at the root of her starting this claim. It is the only claim that she has brought against these respondents. I do not think that she acted vexatiously in bringing the claim.[20]However, I do find that her conduct of the proceedings has been vexatious. There is no doubt that this litigation and her behaviour in it, her behaviour in connection with her activities online have caused an enormous amount of distress, anxiety and probably fear to the respondents. The case concerns their family relationships and their relationship with their children. The claimant uses the litigation and the correspondence and the hearings to repeat that she has concerns about the safety of the children, to allege that the respondents are conspiring against her and that the respondents behaved towards her during her employment in a way that she describes in the most exaggerated and disproportionate terms.[21]I am mindful that her conduct today would not found the basis of the power to make a Preparation Time Order. It is conduct of the proceedings prior to the application that I am considering. However, it seems to me that her conduct in the response and her conduct today is something that I can legitimately take into account once I am satisfied that the initial hurdle has been surmounted. I do accept the claimant’s argument that an employee has the right to take action if they consider themselves to have been wronged. Had the claimant limited her conduct of the proceedings to the core allegations that would have been one thing. However, the respondents have been required to defend themselves against a Tribunal claim which was argued with constant references to allegations of the most serious kind which were without substance and allegations which had been rejected by the appropriate authorities. I consider that the conduct of the proceedings has been vexatious because the conduct was out of all proportion to what is reasonable and the effect was very great distress to the respondents. By the term “the respondents” I mean the individual respondent and DE, who has been conducting the defence on behalf of his husband and the company.[22]Having decided that I go on to consider whether it is proportionate to award a Preparation Time Order. The response to the application shows that the claimant takes every opportunity to repeat her baseless accusations against the respondents and she should know, because it has been pointed out to her, that the Employment Tribunal is not to be used as a vehicle for vituperative comments. The fact that she continues to do so makes me think that, unusually, it is proportionate to make a Preparation Time Order in this case. I award 23 hours @ £38.00 per hour as has been requested. The hours claimed seem to me to be proportionate to the likely time expended and the rate claimed is the statutory rate.[23]I do wish to separately mention accusations that the claimant has made against the Tribunal and against the judiciary which are serious and without foundation. She alleges communications between judges in different Employment Tribunals about separate pieces of litigation. In particular, she alleges communication between judges and litigants and all their representatives of which she has not been made aware and other than for the proper processing of the litigation. I make clear that, in deciding this application, I distinguish between accusations which she has made against the Tribunal and accusations she has made against the respondent. The accusations directed against the Tribunal play no part in my decision making on this application. In the first place they are not matters that have been brought to my attention by the respondent so I have not been asked to consider them. In the second place the Tribunal administration and Employment Judges can be expected to have reasonably broad backs. I do make the point that such baseless accusations are not a proper use of correspondence. As I say they are not relied on by this respondent as grounds for an Order and I do not taken them into account. I do warn the claimant, should it become relevant in the future, that such allegations can found the basis of allegations of unreasonable conduct of proceedings.