Case No 4102016/2017Venue EdinburghHearing 21 February 2019
Between
Miss B RobinsonClaimantFife Health BoardRespondent
Before
Employment Judge J G d’Inverno, QVRM, TD, VR, WSDate 13 September 2019
JUDGMENT
Date: 14 June 2019 Entered into the Register: 17 June 2019 Procedural Background[1]This case called for Open Preliminary Hearing at Edinburgh on 21 February 2019 for the purposes of:- The Issues[2]The Preliminary Issues before the Tribunal for investigation and determination at Open Preliminary Hearing were:- (First) Whether all or part of the claimant’s complaints of discrimination should be struck out for reason of non-compliance with the Tribunal’s orders and or on the ground that they enjoy no reasonable prospect of success; and or that it is not possible to have a fair hearing in respect of those claims, for want of specification and fair notice; respectively in terms of section 37(1)(a) and or (c) and or (e) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 Schedule 1. (Second) In the alternative, let it be assumed that the Tribunal declined to strike out all the complaints of discrimination, whether there be allowed to proceed to final hearing, along with the complaint of constructive dismissal a complaint only of harassment in terms of section 26 of the Equality Act 2010 and being restricted to that given notice of in the initiating Application ET1 at paragraph 44 and at the unnumbered paragraph appearing at the top of page 8, both of the paper apart to the initiating Application; and (Third) In the event that the complaint of discrimination is restricted as proposed in terms of Issue (Second) above whether a deposit order should be made in respect of that restricted discrimination claim in terms of Rule of Procedure 39 on the grounds that it has little reasonable prospect of success. Submissions for the Respondent[3]For the respondent Mr Watson submitted as follows:-(a) The respondent’s primary position is that any claim of discrimination should be struck out;(b) In the alternative, the respondent seeks an order directing that only the specific claim of discrimination, which is given notice of in the ET1, should proceed to a hearing on the merits together with the claim of constructive dismissal. Strike Out of the Discrimination Claim[4]The respondent’s representative confirmed that the respondent seeks strike out of all and any claim of discrimination for non-compliance with the Tribunal’s orders, in accordance with Rule 37(1)(c) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013.[5]That, as at the date of the Open Preliminary Hearing on strike out, there had been three opportunities afforded to the claimant to adequately particularise her discrimination claims respectively in compliance with the Rules of Procedure and with the Orders of the Tribunal:-(a) At first instance in her initiating Application ET1(b) In response to Judge Atack’s orders of 18/23 August 2017, and,(c) In response to the judgment and orders of 5 July 2018 (reaffirmed on 15 August 2018)[6]At paragraph 57 and 58 of the Note of Reasons attached to the judgment of 5 July the Tribunal had articulated that in declining, at that stage, to strike out all of the claims against which the respondent’s Application was directed it had done so for the purposes of according to the claimant “one last opportunity to provide the necessary specification”; and had further stated that failure to comply, without exculpatory reason, with the fresh orders pronounced in that regard of even date and issued in conjunction with the judgment would open the door to amongst other matters the potential remedies at that time being sought by the respondent of Strike Out and a deposit order.[7]In response, the claimant had intimated an 83 page document in tendered compliance and which, following on its initial consideration at Closed Preliminary Hearing on 20 November 2018, the Tribunal, in terms of its order and note dated 26 November 2018, recorded:-• Was difficult and onerous to read for the purposes of extracting the directed specification• Failed to provide the specification directed by the Tribunal in its orders• Appeared to seek to introduce new claims not given notice of in the ET1, and which would require Leave to Amend (which was not sought)• Would, if allowed to be received, substantially render more obscure and widen the scope of any enquiry; would place an unduly onerous burden on the respondent and would result in a hearing of several weeks (contrary to the Overriding Objective).• Was not compliant with the Tribunal’s orders and as such, was not received by the Tribunal as Further Particulars of Claim.[8]Against that background the respondent had applied for, and at Open Preliminary Hearing seeks strike out of all and any claims of discrimination.[9]Discrimination claims require clear specification if they are to be litigated. The respondent was entitled to know the case it has to defend. The claimant had been given ample opportunity to adequately specify her discrimination claim but has been unable or has declined to do so. The opportunity to pursue such a claim had, in the respondent’s submission fairly been lost.[10]The claim of discrimination is given scant notice in the paper apart to the initiating Application ET1. The respondent considers that ultimately and objectively construed, constructive dismissal constitutes the main thrust of the claimant’s complaint. The respondent’s application for strike out of the discrimination claims did not impact upon the complaint of constructive dismissal; and as such, in the respondent’s representative’s submission it would be proportionate to strike out any claim of discrimination and allow only the constructive dismissal claim to proceed. Authorities referred to[11]Mr Watson for the respondent relied upon certain authorities in support of the Application.(a) In Weir Valves and Control (UK) Limited v Armitage [2004] ICR 371, the EAT set out the principles for Tribunals to apply when considering whether to strike out a claim for noncompliance with Tribunal orders. The guiding consideration is the Overriding Objective to do justice between the parties. A Tribunal should therefore consider all the circumstances when deciding whether to strike out or whether a lesser remedy would be an appropriate sanction. Relevant factors will include:-• The magnitude of default• Whether the default is that of a party or their representative• What disruption, unfairness or prejudice has been caused; and whether a fair hearing is still possible.(b) Essombe v Nandos Chickenland Limited UKEAT/0550/06 is an example of a claim being struck out due to the claimant’s willful disobedience of an order. The EAT upheld the strike out of Mr Essombe’s claims as he had deliberately refused to comply with the Tribunal’s order to disclose tape recordings he had made during a disciplinary hearing. The EAT acknowledged that strike out is a draconian order which should only be deployed in a clear and obvious case but held that this was such a case. The EAT noted that as a matter of public policy orders are there to be obeyed, otherwise cases cannot be properly case managed and fairness achieved between the parties.(c) In EB v BA UKEAT/0139/08 and UKEAT/0138/08 a claimant complied with a “literal construction” of the Tribunal’s order but, having understood the intention behind the order, was found to have “deliberately flouted” it. The EAT upheld the Tribunal’s decision to strike out her claim. The claimant had alleged that her employer’s failure to consider her for over 900 work projects was sex discrimination. The Tribunal ordered her to narrow down the list as otherwise the case would be unmanageable. However, the claimant then told the Tribunal that she still wished to pursue all 900 projects. Since the Tribunal had explained why it was making the order, and the claimant had failed to make the case slightly more manageable, she was found to have breached the order, resulting in the striking out of her case.[12]These cases, submitted Mr Watson concerned the striking out of a case in its entirety; whereas the respondent’s Application is only aimed at an aspect of the claimant’s claim given little regard in her ET1. As such, the respondent believed that strike out is not as severe an order as may be in other cases.[13]In terms of addressing other matters to be gleaned from case law, Mr Watson further submitted;(a) The Overriding Objective. Each time the claimant produces documentation, ostensibly in response to the Tribunal’s orders, the respondent is required to incur (at times considerable) expense in reviewing the particulars and cross referencing these with the Tribunal’s order, the ET1, the ET3 and other related documentation. What has been produced by the claimant in the past has been lengthy and onerous to read. It has not been specification, as that would ordinarily be understood, but instead had the effect of a broadening of the issues. The resultant Preliminary Hearing and correspondence with the Tribunal also incurs cost for the respondent.(b) A fair hearing. The respondent’s representative submitted that it is not possible to have a fair hearing in relation to the discrimination claim given its lack of specification and that to proceed in those circumstances would put the respondent at a disadvantage.(c) The extent and magnitude of the claimant’s non- compliance. The respondent’s representative submitted that the claimant’s non-compliance had been in response to clear direction from the Tribunal. The respondent accepted and the Tribunal had made allowance for the fact that the claimant was an unrepresented party. In consequence, considerable time and care had been taken both by the respondent in the criticisms advanced by it and by the Tribunal, to explain to the claimant what was required to achieve compliance and why. In particular, the criticisms directed by the respondent against what the claimant had previously tendered in response to Judge Atack’s orders of 18/23 August 2017 had led to the provision by the Tribunal, in terms of its subsequently issued judgment and orders and orally in the course of Closed Preliminary Hearings, of clear guidance in relation to what was expected of the claimant when she availed herself of what she had been advised was likely to be a “last opportunity to provide the necessary specification”. Under reference to paragraph 55 of the Tribunal’s judgment of 5 July 2018 the claimant’s representative submitted that the above included -• Guidance that the claimant should only add factual details to allegations already given notice of in her ET1;• That the claimant should not set out a lengthy narrative of events;• That the claimant should give notice of the essential elements of each claim by reference to the relevant statutory provision; and should, if desired,• Separately, guidance that if seeking leave to amend, the claimant should incorporate within a tendered Minute of Amendment, the actual words which she wished to add to her ET1 In the respondent’s representative’s submission that guidance had been largely disregarded. Consideration of the lesser sanction[14]The respondent’s representative respectfully submitted that the Tribunal could have, no confidence that further direction to provide specification in relation to the discrimination claim would be complied with. Nor, in the circumstances, would be reasonable to proceed in that way. Against that background the respondent’s representative sought, in the alternative that a complaint of discrimination restricted to that said to arise out of terms of the Occupational Health referral of 13 April 2017, as given notice of at paragraph 44 of the paper apart and in the bullet pointed unnumbered paragraph which appears at the top of page 6 of the paper apart to the initiating Application ET1 and which was separately founded upon by the claimant as the last straw for the purposes of her constructive unfair dismissal claim be allowed to proceed to final hearing together with the constructive dismissal claim. He further submitted that that claim should proceed as an instance of alleged harassment in terms of section 26 of the EqA 2010 (albeit no specific reference to section 26 is made; and, given the absence of any averred causal link between any asserted detriment and any alleged protected act) not as a complaint of victimisation.[15]In the respondent’s representative’s submission the alternative outcome sought, let it be assumed the Tribunal declined to strike out all or any complaint of discrimination, namely that a complaint of section 26 EqA harassment restricted to circumstances given notice of at paragraph 44 and in the first paragraph on page 8, of the paper apart to the ET1 be admitted to hearing along with the constructive dismissal claim would accord with the Overriding Objective:-(a) Dealing with the case in a way that is proportionate to the complexity and importance of the issues and the limited emphasis afforded to the discrimination claims in the ET1;(b) Would address the fact that any hearing dealing with discrimination on a wider basis would add disproportionate length and complexity (on the claimant’s own assessment 21 days for the hearing of her own side of the claims and being in excess of 21 days)(c) Saving expense associated with witness evidence and what would otherwise require to be disproportionately lengthy legal submissions; and,(d) Ensuring that parties were on an equal footing (in terms of adequate specification and fair notice to the respondents of the claims which they require to meet).[16]In the event that the Tribunal was minded to determine and dispose of the issues in accordance with the alternative outcome proponed by the respondents, the respondent’s representative invited the Tribunal to consider the making of a deposit order in terms of Rule of Procedure 39(1) in relation to the discrimination claim which on such a disposal would be admitted to hearing. The Claimant’s Submissions[17]With a view to doing justice to the claimant’s submissions I set them out here fully as I have noted them.[18]Miss Robinson indicated, in outline, that her intention was first to respond to certain of the points made in submission by the respondent’s representative and thereafter to proceed to her own submission. In the event she made a single submission which served both purposes.[19]In response to the respondent’s representative’s submission:- that her originally created documents, intimated in tendered compliance with the Tribunal’s orders of (Judge Atack) of 18/23 August 2017 and the Tribunal’s reiterated orders (Ninth and Eleventh) of 5 July 2018, represented respectively a second and third opportunity afforded the claimant to specify her claims and further, were,• Onerous and difficult to read• Sought in part to introduce new claims not heralded in the ET1• Did not disclose or give any fair notice of, in relation to the putative complaint of victimisation, causal connection between any particular protected act on the one hand and any alleged detriment suffered on the other; and, being documents which the Tribunal had already determined were not compliant with the terms of the respective orders and had not been received by the Tribunal and therefore did not form part of the claimant’s case; The claimant responded in terms of the following submission:-(a) that the previously tendered documents were not onerous and were simple to read(b) That the detriments she had suffered were known to the respondent’s representatives(c) That the allegations which she said would go to establish discrimination were levelled in part at least against some witnesses from whom evidence would also be heard in respect of the constructive unfair dismissal claim and thus shouldn’t be regarded as introducing new claims and thus, she submitted, the admission of the discrimination claim should not be regarded as productive of any additional burden for the respondent(d) That the individuals whom she identified were Lana Clacher, Charmaine Bremner and Isla Barton.[20]The claimant then confirmed in relation to her previously provided estimate of requirement of 21 days to hear her case, let it be assumed all of her discrimination claims were allowed to go to Hearing, that that 21 day estimate previously provided by her related only to the hearing of her own side of the case including hearing evidence from the approximately 12 witnesses whom she had identified and did not include the hearing of the respondent’s case.[21]Regarding the length of hearing and any question of proportionality or prejudice to the respondent the claimant submitted that the solution lay in the respondents’ own hands. She submitted that:-(a) the respondents should have been and should be prepared to concede material elements of her claims such as conceding that they did not follow their policy;(b) to concede that they ought not to have done “this act or that act” as their doing so would avoid the need for the claimant to prove those material matters and would save time.(c) She stated that this was something that the respondent should be expected to do especially when the “evidence is clearly there”.(d) The making of such concessions by the respondents would avoid the need for a lengthy hearing and would also result in a fair hearing.[22]The claimant stated that she had required to expend time and disclose documents to persuade the respondents and to satisfy the Tribunal that she was, at the material times, a disabled person for the purposes of presenting discrimination claims whereas, she submitted, the respondent should simply have conceded that matter without the need for her to expend time and effort persuading them or to produce documentary evidence vouching her position to satisfy the Tribunal.[23]In response to the criticism advanced by the respondents that she had deliberately or willfully failed to obtemper the Tribunal’s orders, the claimant stated that that was not the case but rather that she had sought to comply with the orders and provide specification in the way that she considered appropriate and to the best of her ability. She had been of the view and remained of the view (contrary to the earlier Determination of the Tribunal) that what she had tendered (sought to provide) in compliance with Judge Atack’s Orders of 18/23 August 17 and in response to the judgment and orders of 5 July 2018, was sufficient and that no more was required and, that being her view, that she did not understand why the respondents had asserted and continued to assert that it was not compliant with the respective orders.[24]Reading from pages 11 and 12 of the 166 page bundle which she had lodged, the claimant submitted in summary as follows:-(a) Strike out is not meant to be punitive, which it will be if the Tribunal struck out for non-compliance. The decision to strike out is draconian.(b) She believes “that a fair trial will not be held and there is clear evidence that disability discrimination had occurred throughout my employment and that disability discrimination continued after I resigned my post”.(c) In deciding whether to strike out a party’s case for noncompliance Tribunals must have regard to the Overriding Objective(d) “I am unrepresented”(e) “I believe my case will not be heard fairly. I wish to appeal against the decision not to include reasonable adjustments and discrimination arising from disabilities”. Discussion[25]The procedural history of the Tribunal’s orders directing further specification of the discrimination claims is as set out by the respondent’s representative in his submission. The claimant’s position in 2017 was that what she had elected to produce and tender in response to Judge Atack’s orders was sufficient and that no more was required by her and that the same should be regarded as compliant with the Tribunal’s orders. The claimant’s position in that regard had not changed as at the date of this Open Preliminary Hearing on 21 February 2019. That remains the claimant’s position notwithstanding the intervening:-(a) Orders and judgment of the Tribunal at the previous Open Preliminary Hearing of 8/9 March 2018,(b) The Tribunal’s Determination of the claimant’s Application for review of that judgment (issued 15 August 2018), and(c) The Tribunal’s orders of 20 November 2018.[26]In terms of all of above the Tribunal determined and affirmed; that the documents tendered by the claimant are not compliant with the Tribunal’s orders, were not received by the Tribunal as Further Particulars of Claim and that their content was not incorporated into and does not form part of the claimant’s pleadings in the case. Parties are referred to the Note of Reasons attached respectively to that judgment, to the Determination of Application for Reconsideration and to those orders in which the Tribunal’s reasoning for so determining is fully set out and which is incorporated by reference here for reasons of brevity.[27]The claimant appeared to be reluctant to accept, or to be incapable of accepting, the Tribunal’s earlier Determinations issued following full hearings and her submissions at Open Preliminary Hearing proceeded, in large part, upon an assertion that the respondents:-(a) were wrong not to have simply agreed to the previously tendered 168 page document being received and to its forming part of her case,(b) Had been wrong to assert that the introduction of some elements contained within those documents, if they were to be insisted upon, would require to be the subject of an Application for Leave to Amend, and, by implication, that the orders, guidance and judgments previously issued by the Tribunal variously in July, November and December 2018 and following Determination on 15 August 2018 of the claimant’s Application for Reconsideration of the Tribunal’s earlier judgment, had not been accepted by the claimant and were being disregarded by her.[28]The claimant’s Application for Reconsideration of the Tribunal’s judgment of 24 July 2018, issued following Open Preliminary Hearing held on 8/9 March, having been determined by the Tribunal on 15 August 2018, the Tribunal is unaware of any Appeal against the Tribunal’s original judgment being on the dependence.[29]I consider that no requirement arises to strike out any complaint of discrimination which is not that given notice of in the initiating Application ET1 and its relative paper apart. This because the documents tendered by the claimant purporting to expand the discrimination claims have not been accepted by the Tribunal and neither have the pleadings been the subject of amendment. Accordingly the complaint of discrimination which is currently before the Tribunal is that given notice of at paragraph 44 on page 7 and in the first (bulleted but unnumbered) paragraph appearing on page 8 of the paper apart to the initiating Application ET1 and upon which the claimant separately relies as the “last straw” for the purposes of a constructive dismissal claim.[30]Although neither paragraph in the ET1 paper apart referred to above contains any identification of the statutory provision relied upon, I consider that the complaint given notice of falls to be reasonably construed as a complaint of victimisation in terms of section 26 of the Equality Act 2010. A reading of the paragraphs together, and along with the claimant’s description of the second sentence of paragraph 4 of the OH Report (in truth referral) as “offensive, degrading and containing false allegations against me” and the first sentence of the unnumbered paragraph of page 8 appearing under the heading Disability Discrimination (DD) which is in the following terms: “I suffered disability discrimination (DD) with the constant reference about my admission to a mental health hospital and cfs supports that conclusion and £The degrading work environment, bullying and false allegations caused CFS flare ups”.[31]That complaint, albeit giving notice of only one specified incidence of harassment namely, that said to arise from the wording of the Occupational Health referral of 13 April 2017, has formed part of the claimant’s case from the outset. Clear notice of it is given at the already mentioned paragraphs of the paper apart to the ET1. I consider that sufficient notice is given to that specified complaint such that the respondents know the case they are to respond to in relation to the terms of the Occupational Health Report.[32]The Tribunal having construed and determined, at Open Preliminary Hearing, that it falls to be construed as a complaint of section 26 EqA 2010 harassment, it does not require to be further specified.[33]The references, in the first sentence of the bulleted unnumbered paragraph first paragraph on page 8 of the paper apart to “I suffered disability discrimination (DD) with the constant reference about my admission to a mental health hospital and cfs.”, remain unparticularised and do not give fair notice to the respondents of the claim which they are to meet. A fair Hearing in respect of such a general and unparticularised allegation would not be possible or practicable, the respondents being entitled, as their representative confirmed they would be required to object to any attempts to lead evidence under such a general averment about other instances which are unparticularised and which are other than, or which relate to matters other than the content of the Occupational Health Report, for the purposes of supporting the disability discrimination claim.[34]While as a matter of fact the claimant has failed on three occasions to tender Further Particulars which were compliant with the Tribunal’s orders and while giving consideration to the respondent’s representative’s submission in this regard I have, on balance and at this juncture in proceedings, been unable to conclude that the claimant has deliberately flouted the Tribunal’s orders and I decline to strike out the disability discrimination claim which is given notice of in their ET3 on that ground.[35]Nevertheless the form, volume and expanding nature of the non-compliant Further Particulars which the claimant has on each occasion tendered combined with what appears to be a disregard for the earlier Determinations of the Tribunal and, in consequence, the appearance of unwillingness to comply with its orders, have resulted in substantial procedure associated cost, both financial and in terms of time, to not only the claimant but also to the respondents whom she has convened to the proceedings.[36]Further delay progressing to a final hearing the claims given notice of in the ET1 to final hearing that is the complaint of constructive unfair dismissal together with the specified complaint of disability discrimination, (the section 26 EqA 2010 Harassment complaint) which is given particular notice of at paragraph 44 and in the first and unnumbered paragraph on page 8 of the paper apart to the ET1, would not be in accordance with the Overriding Objective. Disposal[37]Against the background set out above I dispose of the issues as follows.[38]In relation to the first issue I refuse the Application to strike out “all or any claim of discrimination” on the various grounds sought.[39]In relation to the second issue advanced by the respondent’s representative in the alternative, I determine and direct that there now appointed to a final hearing:-(a) the complaint of constructive unfair dismissal in terms of section 95(1)(c) and section 98 of the Employment Rights Act 1996; and,(b) a complaint of disability discrimination being restricted to the section 26 Equality Act 2010 complaint of harassment said to have arisen in the particularised circumstances given notice of at paragraph 44 of page 7 and in the third, fourth and fifth sentences of first unnumbered and bullet pointed paragraph appearing, under the heading Disability Discrimination (DD), at the top of page 8 of the paper apart to initiating Application ET1.[40]For the avoidance of doubt and to assist parties in preparing for the final hearing the terms of the relevant averments which are remitted to final hearing are expressly reiterated below:-(a) From paragraph 44 on page 7 of the paper apart:- “44 On the 10th May 2017 I attended an OH appointment. Dr Blair (Dr B) showed me the report sent by CB dated 13th April 2017. It was offensive, degrading and contained false allegations against me. Dr B stated that it was heading towards a Disciplinary Hearing. This report did not create an environment towards mediation but rather dismissal. The OH report meant more procedures and policies. Due to what was happening at work my health was deteriorating and I was in fear of what was happening. I was feeling suicidal at work as I had no control over what was happening. There was no plan to move forward. This was the final straw.”; and,(b) In the 3rd, 4th, 5th and 6th sentences and appearing in lines 3, 4, 5, 6 and 7 of the unnumbered bullet pointed paragraph first appearing at the top of page 8 of the paper apart to ET1 under the heading Disability Discrimination (DD):- “All OH reports stated I was fit for NNU and OH recommendations such as Staff Resilience course was never followed. The degrading work environment, bullying and false allegations caused CFS flare ups, depression and WRS. The last event of DD was the OH appointment report dated 13th April 2017 which I saw on the 10th May 2017”[41]For the avoidance of doubt it is made clear that the general and unparticularised averments contained in the first and second sentences of the first paragraph appearing on page 8, of the ET1 paper apart vis; “I suffered Disability Discrimination (DD) with constant reference to my admission to a mental health hospital and cfs.”; and “there were constant inference that I would not be able to work in NU again due to my health issues.”, are not remitted to final hearing.[42]In relation to the third issue I am not persuaded that the complaint of disability discrimination as restricted to the terms in which it is now remitted to final hearing enjoys little prospect of success to the extent that merits the making of a deposit order. I accordingly decline to do so, at this juncture in proceedings.[43]Date listing stencils should now be issued to parties representatives for the purposes of identifying dates on which a final hearing, of appropriate duration, will be fixed. As I have formed and expressed opinion on the issues of strike out and prospects of success, the final hearing, once fixed, should proceed before an Employment Judge other than myself. Pending final hearing I will remain the Case Managing Judge. IN THE EMPLOYMENT TRIBUNAL (SCOTLAND) AT EDINBURGH Determination, Issued in Case No 4102016/2017 Following initial consideration by the Tribunal, of Application at the instance of the claimant dated 1 July 2019 for Reconsideration by the Tribunal of its Judgment of 17 June 2019 Employment Judge J G d’Inverno, QVRM, TD, VR, WS Miss B Robinson Claimant In Person Fife Health Board Respondent (Represented by Mr A Watson, Solicitor)[1]The claimant’s Application for Reconsideration dated 1 July 19 (“The Application”) for Reconsideration of the Judgment dated 14th and issued to parties on 17 June 2019 (the Judgment of 17 June) is, in its terms, unclear as to which paragraphs of the determinative Judgment and Case Management Orders of that date, it is intended to be directed.[2]Insofar as the claimant may intend the Application to be directed to all paragraphs of the determinative Judgment and Case Management Orders; that is paragraphs (First) to (Third) inclusive, I consider that there is no reasonable prospect of those original decisions being varied or revoked.[3]Paragraphs (First) to (Third) of the Judgment of 17 June 2019 in respect of which Reconsideration is sought, are in the following terms:- “(First) The respondent’s application for strike out of ‘all or any of the complaints of discrimination’ is refused. (Second) The complaint of constructive dismissal and a complaint of section 26 Equality Act 2010 Harassment, restricted to that given notice of by the averments appearing at paragraph 44 on page 7 and in the third, fourth and fifth sentences of the unnumbered bullet pointed paragraph on page 8 of the paper apart to the initiating application ET1; and in the terms which are expressly set out at paragraph 40 of the Note attached to this Judgment, are appointed to a final hearing to proceed at Edinburgh on dates to be afterwards fixed by date listing stencil. (Third) The respondent’s application for the making of a Deposit Order in respect of the complaint of disability discrimination is refused.”[4]As the claimant’s position at the Open Preliminary Hearing to which the Judgment of 17 June 19 relates was that of opposing the respondent’s applications for strike out and or for the making of a Deposit Order and, absent any express reference to the same in the application of 1 July 19, I consider that the application is not directed to paragraphs (First) or (Third) of the Judgment of 17 June 2019 but rather seeks Reconsideration by the Tribunal of the terms of paragraph (Second) in terms of which the Tribunal remits to final hearing the complaints of constructive dismissal and that of section 26 Equality Act 2010 Harassment, in terms of the specification set out expressly in and by reference to, paragraph 40 of the Note attached to the Judgment.[5]Paragraphs 40 and 41 of the Note attached to the Judgment of 17 June 2019 expressly records, for the avoidance of doubt, the terms of the disability discrimination claim which, in addition to the complaint of constructive dismissal, is remitted to final hearing viz:- “40. For the avoidance of doubt and to assist parties in preparing for the final hearing, the terms of the relevant averments which are remitted to final hearing are expressly reiterated below:-(a) from paragraph 44 on page 7 of the paper apart” [of the ET1] “:- ’44 On the 10th May 2017 I attended at an OH appointment. Dr Blair (Dr B) showed me the report sent by CB dated 13th April 2017. It was offensive, degrading and contained false allegations against me. Dr B stated that it was heading towards a Disciplinary Hearing. This report did not create an environment towards mediation but rather dismissal. The OH report meant more procedures and policies. Due to what was happening at work my health was deteriorating and I was in fear of what was happening. I was feeling suicidal at work as I had no control over what was happening. There was no plan to move forward. This was the final straw.’; and,(b) in the third, fourth, fifth and sixth sentences and appearing in lines 3, 4, 5, 6 and 7 of the unnumbered bullet pointed paragraph first appearing at the top of page 8 of the paper apart to ET1 under the heading ‘Disability Discrimination (DD)’:- ‘All OH reports stated I was fit for NNU and OH recommendations such as Staff Resilience course was never followed. The degrading work environment, bullying and false allegations caused CFS flare ups, depression and WRS. The last event of DD was the OH appointment report dated 13th April 2017 which I saw on the 10th of May 2017’. 41. For the avoidance of doubt it is made clear that the general and unparticularised averments contained in the first and second sentences of the first paragraph appearing on page 8, of the ET1 paper apart, vis (sic viz) I suffered Disability Discrimination (DD) with constant reference to my admission to a mental health hospital and CFS.’; and ‘There were constant inference that I would not be able to work in NU again due to my health issues.’, are not remitted to final hearing.” Structure of the Application for Reconsideration[6]The application opens with five paragraphs of recital in which the claimant advances the following propositions:- “● That it is unfair to “restrict my disability discrimination to just that of ‘harassment’ and to restrict it to one incident (second)” – [that is to the averments set out at paragraph 40 of the Note to the Judgment;] ● That “there was an ongoing state of affairs during my employment with NHS Fife regarding my disabilities and it continued after my resignation.; and, ● I request that the following forms of disability discrimination be included:- ● victimisation ● reasonable adjustment ● discrimination arising from disability.[7]The application, which extends to some five pages of unnumbered paragraphs, is thereafter divided into seven sections under the following headings: “Judgment ET3 Agenda Job reference – victimisation ?? discrimination arising from disability Constructive dismissal Burden of proof Overriding Objective.”[8]Within each section the claimant quotes variously from; the judgment, submissions made by the respondent at the Open Preliminary Hearing to which the Judgment relates, the respondent’s pleadings in the paper apart to their ET3 and to various documents submitted by the claimant, on previous occasions, in tendered compliance with the Tribunal’s Orders but which the Tribunal held were not compliant with its Orders and did not receive.[9]In each section, against the background of such quotations the claimant poses questions and or reiterates arguments advanced by her at previous Open Preliminary Hearings and already disposed of by the Tribunal in the Judgments which were issued following the same.[10]In giving consideration to the detail of the Application, it is important to bear in mind the procedural background to the case and the fact that the various matters to which the claimant makes reference to the Judgment of 17 June “excluding”, are matters which have never formed part of the claimant’s claim, reference to them invariously changing forms having been contained in documents which the Tribunal, in terms of its earlier Judgments has declined to receive as being noncompliant with the terms of its Orders. Procedural History:-• The claimant’s form ET1 was first presented on 21 June 2017.• Following Closed Preliminary Hearing (Case Management Discussion) Judge Atack, in terms of his Orders of 18/23 August 2017 directed that the claimant further specify certain aspects of the “intended claims” to which she made reference variously in her CMD Agenda and orally in the course of that first Case Management Discussion but which were not disclosed in her ET1.• On 8 September 2017 the claimant intimated two documents respectively extending to 23 pages referred to by her as the claimant’s “Specification Document or Document 5”, and to 32 pages referred to as the claimant’s “Events Document or Document 6” in tendered compliance with the Tribunal’s Orders.• Exception to those documents on various grounds was taken, by the respondents who contended that they should not be received by the Tribunal as Further Particulars of Claim.• Following Open Preliminary Hearing and in terms of its subsequent Judgment of 5 July, issued, on 10 July 2018, to the terms of which parties are again referred, the Tribunal declined to receive the documents as Further Particulars of Claim on the various grounds set out in the judgment while also allowing to the claimant a period of time within which to bring forward a Minute of Amendment if so advised and issuing direction to the claimant regarding the focusing of her complaint of constructive dismissal all with a view to narrowing the width of evidential enquiry and the consequently disproportionate burden of the same, all in terms of paragraphs (First) to (Twelfth) of its Judgment of 5/10 July 2018, viz; “(First) That there is recorded:-(a) the claimant’s clarification, made orally in the course of Open Preliminary Hearing that under the jurisdiction of “breach of contract” the claimant intends to give notice only of a complaint of constructive dismissal and not of any other complaint and the claimant’s further confirmation that she does not seek to place before the Tribunal any freestanding complaint or claim for damages for personal injury by reason of work related stress.(b) There be recorded the claimant’s confirmation, made in the course of Open Preliminary Hearing, that the “final straw” which she relies upon for the purposes of her constructive unfair dismissal claim is the Occupational Health referral, made by Charmaine Bremner in relation to the claimant on 13th April 2017, and which contained what the claimant considered to be false accusations about her. (Second) The claim for damages for personal injury allegedly caused by work related stress is dismissed for want of jurisdiction. (Third) That the two documents first intimated by the claimant on 8th September 2017 in tendered compliance with Judge Atack’s Orders of 18th/23rd August 2017 being respectively the documents referred to as “document 5” or “Specification Document” and as “document 6” or “Events Documents” are documents which variously:- (a) contain elements which would require the prior granting of Leave to Amend; (b) do not in themselves contain the specification which the claimant herself indicated in the course of Open Preliminary Hearing she wished to give notice of;(c) are difficult and onerous to read for the purpose of extracting the directed specification;(d) in parts, amount substantially to the pleading of evidence and are so broad in their scope as to fail to provide the specification directed by Judge Atack or to disclose, under the various headings contended for, relevant claims which can be seen to enjoy reasonable prospect of success;(e) in part, seek to introduce new claims not given notice of in form ET1 and based upon new averments of fact in relation to various unconnected acts said to have occurred over a two year period the majority of which, and subject to certain minor exceptions, are time barred;(f) if received and when taken together with the averments contained in the initiating Application ET1 first presented on 21st June 2017 the documents would not constitute compliance with Judge Atack’s Orders of 18th/23rd August 2017 thus giving rise to the possibility of strike out of the claims for want of compliance;(g) that separately, the effect of allowing documents 5 and 6 to be received and incorporated into the pleadings, contrary to that of narrowing the matters in dispute between the parties and thus focusing the relevant issues both preliminary and on the merits which was intended in terms of Judge Atack’s Orders, would be, i. to substantially widen and render more obscure the scope of any enquiry; ii. to place an unduly onerous burden, in terms of cost and scope of enquiry, upon the respondents; iii. productive of requirement for an evidential Hearing of between 30 and 45 days on parties’ respective estimates; iv. would not be proportionate in the circumstances; and, v. would run the risk of essential issues being obscured in a volume of detail such as would require intervention prior to Hearing to restrict the admissibility of evidence and in consequence the scope of the pleadings in terms of which the basis for it was advanced.(h) If received and allowed to form part of the pleadings would not assist the furtherance of but rather would frustrate, the overriding objective (Fourth) The claimant’s Specification Document (“document 5”) and Events Document (“document 6”), tendered by the claimant on 8th September 2017 in proffered compliance with Judge Atack’s Orders of 18th/23rd August 2017, are not received by the Tribunal. (Fifth) Separately, the unconnected events referred to by the claimant in documents 5/6 which are said to have occurred earlier than 9th June 2017 are time barred for the purposes of supporting the claimant’s complaints of discrimination and should not be included in any subsequent document tendered by the claimant in compliance with Judge Atack’s Orders and, if included in any tendered Minute of Amendment will be subject to the challenge of time bar in the context of the granting or refusal of Leave to Amend. (Sixth) The claimant’s initiating Application ET1 including the paper apart attached thereto and which the claimant first presented to the Employment Tribunal on 21st June 2017 contains notice of the following complaints only:- (a) constructive unfair dismissal; (b) discrimination because of the protected characteristic of disability by reason of Chronic Fatigue Syndrome (CFS), and by way of:-(i) harassment (section 26 of the Equality Act 2010) (ii) victimisation (section 27 of the Equality Act 2010) (the protected act founded upon by her being her submission, on 24th March 2017, of her grievance) (Seventh) The claimant’s initiating Application ET1 including the paper apart attached to it does not give notice of any complaint of discrimination:- (a) by reason of failure to comply with a duty to make adjustments (sections 20 and 21 of the Equality Act 2010; nor of, (b) disability arising from discrimination (section 15 of the EqA 2010); and, insofar as the claimant wishes to insist upon adducing such complaints she will require to do so by incorporating the relevant averments in a tendered Minute of Amendment and by making formal application, in accordance with the Rules of Procedure, for Leave to Amend in its terms. (Eighth) Allows to the claimant a period of 28 days from the date of promulgation of this Judgment within which to take advice and, if so advised, to lodge with the Tribunal and to intimate to the respondent’s representative a tendered Minute of Amendment together with a written Application, made and intimated in terms of the Rules of Procedure, for Leave to Amend; and allows to the respondent’s representative a further period of 14 days thereafter to consider the terms of the tendered amendment and to write to the Tribunal and to the claimant confirming whether the Application for Leave to Amend is to be opposed in whole or in part, and, if in part, identifying by reference to paragraph and line number those parts of the amendment to which respectively no objection is taken and those parts in respect of which the Application for Leave to Amend is opposed. (Ninth) The claimant is ordered of new to send to the respondent’s representative and to the Tribunal, within 28 days of the date of promulgation of this Judgment further written particulars of the complaints of discrimination by reason of harassment and of discrimination by reason of victimisation the same being restricted to the complaints of harassment and of victimisation already given notice of in the paper apart attached to her initiating Application ET1 and further being:- (a) in relation to the complaint of harassment specification:- (i) of each of the acts of unwanted conduct within the three month period immediately preceding the 21st of June being the date of first presentation of the ET1 that, is in the period 21st March to 21st June 2017; and of, within the same three month period, (ii) each instance of unwanted conduct related to her protected characteristic of disability, on the part of the respondent’s employees, upon which she relies and by reference, in respect of each such instance, to:-• what,• between which parties/at whose hands (that is by which of the respondent’s employees) and, by reference to what, in each instance it is that the claimant relies upon as going to show that she was subjected to the detriment because she had lodged her grievance on 27th March• by which means of communication and, where appropriate, by reference to the specific words allegedly used; (b) and, in relation to the complaint of victimisation, of each of the detriments which the claimant offers to prove the respondent subjected her to and occurring after and because of the protected act of lodging her grievance on 24th March 2017 and including in respect of each such detriment relied upon specification of:-• at whose hands (that is by which of the respondent’s employees) and, by reference to what, in each instance it is that the claimant relies upon as going to show that she was subjected to the detriment because she had lodged her grievance on 27th March (Tenth) Allows to the respondent’s representative a further period of 21 days thereafter, that is a period of 49 days from the promulgation of this Judgment within which to consider the Further Particulars provided and to adjust the paper apart to form ET3 in response thereto, if so advised. (Eleventh) Orders the claimant to provide to the respondent’s representative and to the Tribunal, within 28 days of the date of promulgation of this Judgment, Further Particulars of her complaint of constructive unfair dismissal being:- (a) specification of no more than 10 alleged acts or omissions of the respondent’s/the respondent’s employees, including the submission by Charmaine Bremner on or about 13th April 2017 of an Occupational Health referral containing alleged false allegations against the claimant which she has now identified as the last straw, and which the claimant offers to prove individually or collectively constituted a material breach of her Contract of Employment entitling her to resign and in response to which she asserts she resigned on 12th May 2017 the same restricted to matters made reference to and given notice of in the paper apart to the claimant’s initiating Application ET1 and; in relation to each such act or omission relied upon by specification of:-• what,• at whose hands/between which parties,• by which means of communication and, where relevant, by reference to specific words allegedly used; and (b) allows to the respondent’s representative a further period of 21 days thereafter that is 49 days from the date of promulgation of this Judgment within which to consider the Further Particulars of Claim and, if so advised, to adjust the paper apart to form ET3 in response thereto. (Twelfth) Appoints the case to a Closed Preliminary Hearing (Case Management Discussion) of two hours duration to proceed before the sitting Judge at Edinburgh on 4th September 2018 at 10 am; and directs that Confirmation of Hearing Notice be issued to parties in that regard forthwith.” Procedural History Continued:-• No appeal was taken against the terms of the Tribunal’s Judgment of 5/10 July 2018 in terms of which the Tribunal had reiterated, in further detail the Tribunal’s earlier and uncompiled with Order that the claimant provide specification of particular claims identified in the Order and further specification focusing the issues of fact and narrowing the scope of enquiry in the constructive unfair dismissal claim including the insufficiently particularised complaint of victimisation• By application dated 24 July 2018 the claimant sought Reconsideration of the Judgment on grounds which are now broadly replicated albeit in a slightly different format in this application, dated 1 July 2019, for Reconsideration of the Tribunal’s further Judgment of 17 June 2019.• By determination dated 15th of August 2018 the Tribunal refused the application for Reconsideration in terms to which parties are again referred.• On 13 September 2018 the claimant intimated an 83 page document, not presented as an amendment or supported by any application for Leave to Amend, in tendered compliance with the Tribunal’s Order paragraph (Ninth) and (Eleventh) attached to its Judgment of 5/10 July 2019.• Exception was taken to the tendered 82 page document by the respondent who contended; that it did not constitute compliance with the Tribunal’s Orders and on that basis should not be received and who sought the fixing of an Open Preliminary Hearing for determination of application for strike out of the claim on the grounds of noncompliance with Orders of the Tribunal.• The issue of whether the tendered 82 page document did or did not constitute compliance with the Tribunal’s Orders and should or should not be received by the Tribunal as further particularisation of the claimant’s claim was discussed by the parties and the Tribunal at a Closed Preliminary Hearing fixed for that purpose and for the purpose of determining appropriate further procedure and which proceeded before the sitting Judge at Edinburgh on 20 November 2018. In its Orders issued at and following the Case Management Discussion the Tribunal having considered the same recorded the fact the noncompliance of the 83 page document, tendered by the claimant on 13 September 18, with the Tribunal’s Orders 9th and 11th of 5th/10th July 2018 and the fact that that document was not received by the Tribunal as Further Particulars of Claim. The Orders of 20 November 2018, to which parties are again referred are in the following terms:- “The Employment Judge having heard the claimant and the respondent’s representative (“the parties”) in Case Management Discussion:- (First) Records that the 83 page document tendered by the claimant on 13th September 2018 is not compliant with the Tribunal’s Orders (Ninth) and (Eleventh) of 5th/10th July 2018 and is not received by the Tribunal as Further Particulars of Claim. (Second) Allows to the respondent’s representative a period of 12 days from the 26th of November 2018 within which, if to be insisted upon, to intimate to the claimant and lodge with the Tribunal, in compliance with the Rules of Procedure, a formal application for strike out of all or part of the claims of discrimination; and, let it be assumed that the Tribunal were to decline to strike out all or part of the claims so identified, an Application, in the alternative, for appointment to a Final Hearing of specified claims of discrimination and the claim of constructive unfair dismissal, insofar as sufficiently specifically given notice of in the existing pleadings that is to say in the paper apart to the initiating Application ET1. (Third) Allows to the claimant a further period of 12 days thereafter, that is within 24 days of 26th November 2018 to write to the respondent’s representative, with a copy to the Tribunal, confirming whether any such Application, if made, is objected to in whole or in part. (Fourth) Appoints the case to a one day Open Preliminary Hearing, for consideration and determination of the formal Application for Strike Out/Allowance of Final Hearing, if insisted upon and opposed, to proceed at Edinburgh before the sitting Judge and commencing at 10 am on a date in February/March/April 2019 to be afterwards fixed by date listing stencil and in consultation with the Judge; and directs that date listing stencils with a return date of 24th December 2018 be issued to parties in that regard forthwith.”• The Open Preliminary Hearing, to which the case was appointed in terms of Order (Fourth) of 20/26 November 2018 ultimately proceeded between the parties on 21 February 2019, for determination, amongst other matters of the respondent’s application for strike out of “all or any of the complaints of discrimination and remittance of the complaint of constructive unfair dismissal to final hearing in the terms sought by them”.• In the terms of its Judgment issued following that Open Preliminary Hearing, the Judgment of 17 June 2019 the terms of which are set out at paragraph (3) above the Tribunal refused the respondent’s applications for strike out and, in the alternative for the making of a Deposit Order and remitted the complaint of section 26 EqA 2010 Harassment, as set out in the initiating application ET1, to final hearing together with the complaint of constructive unfair dismissal and the terms of the claimant’s averments identified by it at paragraph 40 and 41 of the Note appended to its Judgment.• By Notice dated 11 July 2019 the claimant appealed to the Employment Appeal Tribunal against the Tribunal’s Judgment of 17 June 2019. That Appeal remains on the dependance.• By email dated 1 July 2019 the claimant made application to the Employment Tribunal for Reconsideration of its Judgment of 17 June 2019.[11]In relation to the detail of the application, at the top of page 2 under the heading “point 30” the claimant quotes from paragraph 30 of the Judgment and makes the following statement:- ““Point 30 ‘I consider that the complaint given notice of falls to be reasonably construed as a complaint of victimisation I am unclear why then is victimisation therefore being dismissed.””[12]In the quotation set out above, from paragraph 30 of the Judgment, the claimant cuts off and excludes the last ten words of the sentence which following on from the word ‘victimisation’ continues thus;- ‘in terms of section 26 of the Equality Act 2010.’ Those words, together with the wording of the balance of paragraph 30, of paragraph 31 and 32 disclose, on their face, that the use of the term ‘victimisation’ where it appears in the fourth line of paragraph 30, is an erroneous use which has occurred through accidental slip, the term which should properly have been used being that of ‘harassment’ and which as is made clear by the statutory reference contained in the last ten words of the sentence which have been omitted by the claimant in the quotation which she has included in the application.[13]Parties are referred to the Tribunal’s separate Order and Certificate of Correction issued under Rule 69, in terms of which the mistake has been corrected and are further referred to the corrected version of page 17 of the Judgment which has been sent to parties.[14]Otherwise, the content of the application for Reconsideration set out under the seven section headings amount to a reiteration of arguments already made and considered by the Tribunal in the context of its issued disposals not only at the Open Preliminary Hearing but also in the context of its earlier Judgment of 10 July 2018 and its Determination of 15 August 2018 of the claimant’s subsequently made application for Reconsideration of that Judgment. Separately, those reiterated arguments, as on the two previous occasions when they were advanced before the Tribunal, are again predicated on an assumption that the source documents giving rise to them, that is the claimant’s so-called “Specification Document – Document 5” and “Events Document – Document 6” of 8 September 2017 and or the claimant’s 82 page document of 13 September 2018; and intimated variously in tendered compliance with the Tribunal’s earlier Orders, have been received by the Tribunal as Further Particulars of the claimant’s claims and form part of her written pleadings. That however is not the case the Tribunal having, as set out above, determined that those documents were not compliant with its Tribunal’s Orders and having declined to receive them, all in terms of Judgments not appealed and reaffirmed in the face of an earlier application for Reconsideration. The claimant’s reluctance or inability to accept the Tribunal’s earlier Determinations issued following full hearings which is referred to at paragraph 27 of the Judgment, with the exception of the erroneous reference to ‘victimisation’ dealt with above, also appears to substantially inform the terms of this application for Reconsideration.[15]In the context of that background, I do not consider that the application discloses grounds upon which the Tribunal’s Judgment should be varied or revoked. The same, particularly so where the arguments upon which Reconsideration is sought have already been advanced before the Tribunal and not sustained. The issues of, victimisation, reasonable adjustments and discrimination arising from disability in respect of which the claimant has failed to particularise in compliance with the Tribunal’s original and reiterated Orders, have all been considered in the context of the Tribunal’s earlier Judgments and Determinations. Accordingly in terms of Rule of Procedure 72(1) I refuse the application for Reconsideration and direct that the clerk shall inform the parties of the refusal.[16]Insofar as the Tribunal may be considered, in terms of its Judgment of 17 June 2019, to have misdirected itself in law, that is a matter the determination of which falls properly within the remit of the Employment Appeal Tribunal and in respect of which the current extanct appeal provides an appropriate vehicle. As stated in the Judgment of 17 June the Overriding Objective is not served in this case by further delay in the bringing to hearing of the complaint of constructive dismissal and the section 26 EqA 2010 complaint of harassment as have been remitted to evidential hearing. Date listing stencils with a return date of 14 October 2019, canvassing parties’ availability for the conduct of a final hearing in the months of December 2019/January/February 2020 should, therefor, be issued to parties’ representatives in that regard forthwith. Date of Judgement: 13th September 2019