The Judgment of the Employment Tribunal is that the claimant’s claim under section 15 of the Equality Act 2010 is struck out on the basis that it lacks any reasonable prospect of success, under Rule 38(1)(a) of the Employment Tribunals Rules of Procedure 2024.
REASONS
[1]In this case, parties have made submissions on the issue of whether the claimant’s claim under section 15 of the Equality Act 2010 against the respondent should be struck out.[2]Parties were agreed that this matter should be dealt with by the Tribunal on the basis of written submissions alone. ETZ4(WR)[3]I summarise the submissions below, and then set out my judgment in relation to this matter, with reasons. Submissions[4]This case has a very considerable history. The claimant, who is represented by her sister, has sought to set out her claims in some detail over an extended period of time. The respondent’s agent, and the Tribunal, have taken a large amount of time to try to streamline and categorise the claims.[5]On 14 January 2025, the Tribunal wrote to the claimant and the respondent setting out the directions to be issued following the Preliminary Hearing which took place before Employment Judge d’Inverno on 7 December 2024. It is appropriate to set out the relevant terms of that letter here in order to set the context for this decision: “It is noted that the respondent is insisting upon its application for a deposit order to be granted as a condition of permitting the claimant to continue to proceed with her claim of discrimination arising from disability under section 15 of the Equality Act 2010, citing the claimant’s failure to comply with the Tribunal’s Order to provide further clarification of that claim. In addition, rather unusually, the respondent has not made an application for strike out of the claim under section 15, but has urged the Tribunal to consider issuing an Order for strike out of that part of the claim, of its own initiative. No decision on strike out can be made without giving the claimant the opportunity to make representations to explain to the Tribunal why a strike out order should not be made under Rule 38(2) of the Employment Tribunals Rules of Procedure 2024. Employment Judge Macleod has taken the view that the claimant’s claim under section 15 of the Equality Act 2010 has not been sufficiently clarified by the claimant’s representative as yet, and accordingly is giving consideration to striking out that part of the claim. This is particularly so given the comments made in his Note following Preliminary Hearing dated 4 October 2024, at paragraph 128, when it was made clear to her that any failure to provide further information on this claim may result in strike out of the claim. Accordingly, the Tribunal is considering strike out of the claimant’s claim of discrimination arising from disability under section 15. It is necessary, in that light, to give the opportunity to make representations as to why the claim should not be struck out. It should be made clear that the Tribunal is giving consideration to strike out of this part of the claimant’s claim under Rule 38(1)(a) of the Employment Tribunals Rules of Procedure 2024, on the basis that the claim has no reasonable prospect of success given the failure to specify it fully, and 38(1)(c), on the basis that the claimant has failed to comply with Order (FIFTH) of the Tribunal’s Order dated 3 December 2024, in answering questions in the List of Issues but not answering the respondent’s discrete questions set out in terms of Order (FOURTH) of that Order.”[6]The claimant responded by email dated 17 January 2025, with an attachment setting out her clarification of the claim under section 15. In that document, she set out a number of entries in which her GP had recorded occasions upon which she had complained about stress in the workplace.[7]In her representations against strike out, the claimant made reference to repeated episodes of stress due to work, having an impact upon her mental health. Again, she was referring to entries in her GP records. She went on to say that “These records clearly demonstrate a connection between the workplace environment and her health issues, meeting the criteria for Section 15 claims.”[8]The claimant then submitted a statement dated 19 January 2025 to the Tribunal herself, forwarded by her representative. She submitted that the Tribunal should not strike out her claim against the respondent. She said that for years, she had been targeted and made to feel unsafe in the workplace, and that despite raising her concerns with management, nothing was done. She submitted the evidence in order to demonstrate how long the treatment had gone on for, with the direct result that her mental health had been adversely affected, and that she had been left traumatized and with a diagnosis of PTSD.[9]She argued that striking out her claim would not only deny her justice but also reinforce the pattern of dismissal that she had endured for years.[10]On 22 January, the matter became slightly more complicated. The claimant emailed the Tribunal to make what appeared to be a complaint about the respondent’s representative’s conduct in relation to possible settlement discussions, and attached a copy of a letter from the respondent to her in which these matters were raised, on a without prejudice basis.[11]On 23 January, Mr Minnis, the respondent’s representative, wrote to the Tribunal to protest about the claimant’s email. He complained that the claimant’s representative had intentionally and improperly shared without prejudice correspondence with the Tribunal. The respondent did not consider that there was anything improper in the correspondence, but did not waive privilege in respect of that correspondence. This placed the ability of the Tribunal to conduct a fair trial at risk, he argued, and coupled with the obstructive manner in which the claimant’s representative had continued to manage the claim, including a lack of clarity about the pleadings and failure to comply with directions, the respondent considered the claimant’s representative’s conduct to be unreasonable and/or vexatious and/or scandalous, and in those circumstances reserved the right to make an application to strike out the claimant’s claim in its entirety.[12]By email dated 28 January 2025, the claimant’s representative then presented written submissions to the Tribunal. She set out an overview which appeared to relate to the merits of the allegations made by the claimant, and then summarized the correspondence in relation to the strike out warning. She also referred to an email by the claimant herself, apparently sent to the Tribunal on 27 January, though no record of receipt of such an email by the Tribunal is available to me. However, having enclosed it on 28 January, it was clear that Ms Hussain wished it to be taken into account. In her letter, she complained about the respondent having ignored her complaints for years, repeated the long-term impact upon her mental health, the current effect upon her and the financial hardship and further harm which she complains of suffering.[13]The respondent wrote to the Tribunal on 30 January 2025, and reiterated the submissions made in their letter of 7 January 2025.[14]They argued that the claimant’s section 15 claim must have no reasonable prospect because despite being given multiple opportunities to do so, she has failed and/or cannot particularise it. The respondent does not therefore know the claim made, and the Tribunal cannot determine such a claim.[15]Further, they submit that the claimant has also failed to comply with numerous case management orders of the Tribunal to particularise her claim. They referred to Order 3(c) dated 5 April 2024; Order 2 dated 2 July 2024; paragraphs 127, 128 and 159 of the Judgment dated 4 October 2024 and Order (FIFTH) dated 3 December 2024.[16]They submitted that in the circumstances there are clear grounds upon which to strike out the claimant’s section 15 claim under Rule 38(1)(a) on the basis that the claim has no reasonable prospect of success, and 38(1)(c), on the basis that the claimant has failed to comply with 4 Orders in total.[17]To allow this claim to proceed would not be in the interests of the Overriding Objective nor would it deal with the case fairly and justly. They argued that the respondent would be unfairly prejudiced and therefore the parties are not on an equal footing. The claimant has been given ample opportunity to clarify her section 15 claim, and the final Hearing is rapidly approaching. As a result, there is still no finalized list of issues. The Tribunal has exercised considerable flexibility and the preparations for the final hearing have been unnecessarily delayed.[18]The respondent reminded the Tribunal that if the strike out were not to be granted, their application for a deposit order remained live and should be considered. Discussion and Decision[19]Rule 38(1)(a) and (c) of the Employment Tribunals Rules of Procedure 2024 provides: “At any stage of the proceedings, either on its own initiative or on the application of a party, a Tribunal may strike out all or part of a claim or response on any of the following grounds- (a) that it is scandalous or vexatious or has no reasonable prospect of success; (c) for non-compliance with any of these Rules or with an order of the Tribunal…”[20]Rule 37(2) provides: “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.”[21]The application is made under Rule 37(1)(a) and (c).[22]Essentially, the application under Rule 37(1)(a) is that the claimant’s claim is vexatious and has no reasonable prospect of success. The well-known case of Ezsias v North Glamorgan NHS Trust 2007 ICR 1126 CA provides helpful guidance in considering whether to strike out a claim involving whistleblowing allegations, and said that the same approach should be taken in such cases as requires to be taken in discrimination claims, which require an investigation to be conducted into why an employer acted in a particular way. It was stressed that only in an exceptional case will a case be struck out as having no reasonable prospect of success where the central facts are in dispute.[23]The case of Faron Fariba v Pfizer Limited & Others UKEAT/0605/10/CEA was a case in which the EAT found that an Employment Judge was entitled to strike out claims by a claimant who had 24. demonstrated by her disregard for Tribunal orders and the allegations made in correspondence against the respondent, their solicitors and the Tribunal that she was incapable of bringing her complaints to a fair and orderly trial.[25]In reviewing the claimant’s conduct, Mr Justice Underhill noted: “Dr Fariba said at this hearing that the Tribunal was being distracted from dealing with her employment claim. I entirely agree with that statement, but in my judgment it is Dr Fariba who has not been focussing upon the specific legal claims that she wishes to have the Tribunal determine, but has consistently sought to divert attention from them by raising peripheral issues and making extensive and excessive allegations.”[26]At a later stage in the judgment, Mr Justice Underhill said: “This is not… a case of the (not uncommon) kind where a litigant in person fails to meet deadlines and/or behaves unreasonably or offensively but is nevertheless doing his or misguided best to comply with the directions set by the tribunal in order to get to trial. Instead, the scatter of allegations of misconduct, the applications for a stay, the pursuit of other proceedings, the threats of resort to criminal or regulatory sanctions, clearly indicated that the Appellant’s focus was entirely elsewhere and that if the case remained live she would, if I may use my own language, continue to thrash around indefinitely. That is why, and the sense in which, the Judge concluded that a fair trial was impossible.”[27]In this case, the first question to address is whether the claimant’s claim of discrimination arising from disability should be struck out on the basis that it has no reasonable prospect of success.[28]The Tribunal requires to take into account the fact that the claimant is represented by an unqualified representative, who appears to have struggled to understand every aspect of the law relating to discrimination in this case. That is a matter which the Tribunal requires to reckon in the balance of factors relevant to its decision.[29]It is important to remember that the Tribunal has already considered this claim, as a whole, as part of the decision made in October 2024, when the claimant was seeking to clarify her claims. The Tribunal allowed the claimant’s application to amend her claim to include a section 15 claim (and it is only the section 15 claim under scrutiny in this decision), but then said, at paragraph 128: “However, and this is of considerable significant, an Order is set out at the conclusion of this Judgment requiring the claimant, in effect, to fill in the blanks on the draft List of Issues, within 21 days of the date of this Judgment, and any failure on her part to do so may well result in the strikeout of these claims. She has been given many opportunities to clarify her claims, and must now be very aware of the need to be as specific as possible in setting out her claim under section 15 if she wishes to pursue such a claim against the respondent.”[30]In fact, no separate Order was issued at the conclusion of that Judgment, which represented an oversight on the part of the Employment Judge at that time.[31]In any event, it was clear to the parties that the claimant was required to “fill in the blanks” on the draft List of Issues relating to the 3 claims identified under this section at paragraph 117 of the Judgment.[32]The claimant provided a response dated 17 October 2024 in which she attached a document setting out her attempts to clarify her claims under section 15.[33]Under the first heading, namely “Taking disciplinary action against the claimant for stress-related absences, which arose from her alleged disability of anxiety and depression”, she complained that Paul McIvor, Regional Manager, did so on 5 separate occasions in the period 2021 to 2023, namely on 27 September (twice), 28 September, 29 September and 4 October, all 2022.[34]Under the second heading, “Overlooking the claimant for Promotion”, the claimant referred to an email she received on 27 February 2023 confirming that she had been unsuccessful in her application for the position of Event Space Concierge Lead, and complained that this was done because of her age and dyslexia, which affected her processing speed.[35]Under the third heading, “Failing to give prior notice for meetings and provide training materials in advance of training”, the claimant said that the “something arising” in consequence of her disability of dyslexia was to be confirmed, and that it was because of this that on 19 to 21 November 2021 Paul McIvor came on site and asked to have meetings with the claimant for investigations.[36]On 2 December 2024, the respondent’s representative wrote to the claimant asking further questions about the section 15 claim. In particular, they asked what, in particular, Mr McIvor did or was alleged to have done on the 5 occasions named in the first heading; whether it was Mr Bottger and Mr Robertson who interviewed the claimant for the position of Event Space Concierge Lead; what the something arising in consequence of the claimant’s alleged disability of dyslexia was; and what meetings Mr McIvor is alleged to have come on site on 19 November 2021 to ask about.[37]The claimant did not reply in detail to these questions.[38]In my judgment, the respondent’s continued questioning of the claimant, while seen by the claimant as constantly placing demands upon her which it is unfair to her to meet, is a clear indication that the claim under section 15 has not been specified in the manner anticipated by the Tribunal at every stage when this matter has been considered.[39]The events which have been alleged are said to have taken place in November 2021 and then September and October 2022.[40]It should also be recalled that this case has been the subject of careful scrutiny by the Tribunal on 4 October 2024, when a Note was issued going through the different claims raised by the claimant and confirming whether or not any or all of them would be permitted to proceed. Under the heading of Discrimination Arising From Disability, at paragraphs 116ff, the Tribunal permitted the claimant’s application to amend her claim under section 15, on the basis that she had signposted in the ET1 her intention to do so. That permission, however, was not unconditional – it was dependent upon her providing further particulars of her claim. The Tribunal acknowledged that the claimant was entering a very complex area of the law in this claim, and sought to extend to her a further period of time within which to make her claims.[41]The claimant should therefore have been in no doubt that she required to provide greater detail to her claims. It is my conclusion that she has failed to do so, despite being given further opportunity to do so. The claim under section 15 remains, despite considerable efforts by the Tribunal to move matters forward, in such a state that in order for fair notice to be given to the respondent and clear understanding to be available to the Tribunal as to the full details of the claim, further questions have had to be asked of the claimant after her further attempts to clarify the matter.[42]In my judgment, while the claimant has attempted to advance her claim under this hearing, she has failed to place before the respondent and the Tribunal a clear complaint in which it is understood on what basis she is complaining that something arose in consequence of her disability (and not, under this hearing, in relation to her age), which amounted to unfavourable treatment by the respondent. There are too many areas in which it is entirely unclear what it is that the claimant is actually complaining about. She makes reference, for example, to Mr McIvor taking disciplinary action against her on a number of dates, but does not specify what that disciplinary action was. She must do more than simply cite a number of dates under a general allegation, and she must have been aware that she required to do so.[43]The lack of clarity of her section 15 claim means, in my judgment, that it cannot be said to have any reasonable prospect of success, and that despite being given numerous opportunities to resolve the concerns expressed by both the Tribunal and the respondent, the claimant has failed to improve upon her claim to such an extent that the Tribunal can reasonably find that this claim has any reasonable prospect of success.[44]Accordingly, with some reluctance, I have come to the conclusion that the claimant’s claim under section 15 of the Equality Act 2010 should be struck out on the basis that it lacks any reasonable prospect of success.