Mr M Chalmers and others v Wyvis One Estate Ltd and others: 4102910/2023 and others
JUDGMENT
[1]The Further and Better Particulars lodged on the 13 September 2023 are accepted by the Tribunal except in so far as they relate to the alleged Disclosures from 9 to 20 which are not accepted.[2]The claims for harassment and victimisation (excepting therefrom the claim for victimisation and termination of employment) made by the fourth and fifth claimants Mr Gordon Beattie and Mrs Marie Beattie against the respondents being out of time, and the Tribunal finding that it was not just and equitable in the circumstances to extend the statutory time limit, are dismissed.[3]The case shall be listed for a case management hearing to identify dates for a final hearing and to discuss any other case management issues.REASONS
[1]The claimants in this case have brought complaints of “standard” ordinary unfair dismissal, and ‘‘automatic’’ unfair dismissal through the making of protected disclosures and then of having been subjected to detriments. Mr Beattie (case no. 4102913/2023) and Mrs M Beattie (case no. 4102914/2023) have brought complaints of harassment under section 26 of the Equality Act 2010 (EA) in respect of the protected characteristic of age and also victimisation in terms of section 27 of the EA. Dismissal is admitted; the merits of the claims disputed.[2]The case proceeded to a preliminary hearing before Judge Hosie on 4 July 2023. He set out the purpose of today’s hearing which was to consider: Time-bar; Whether the protected disclosures relied on by the claimants are “qualifying disclosures”; Whether any of the claims being advanced should be struck out as having no reasonable prospect of success or a Deposit Order made if they have “little reasonable prospect of success”; Which if any of the cases should be combined with each other.[3]At the outset of the hearing, I discussed with the parties the appropriate way of approaching these matters. What became apparent is that Ms Donald’s clients’ position is that certain protected disclosures contained in the claimants’ recent Better and Further Particulars amounted to an amendment. They were also deficient in the way they had been framed. She sought strike out or the lodging of deposit orders. The issue of time bar had to be determined in relation to the claims for victimisation made by Mr and Mrs Beattie. Mr Briggs’ position was that it wasn’t an amendment but simply a greater specification of existing claims and that was what had been provided. In the round there was sufficient notice of his client’s position. He intended leading some evidence from Mr and Mrs Beattie in relation to section 123 of the Equality Act and the claims for victimisation. He indicated that he was not leading evidence in relation to whether or not it was not reasonably practicable to lodge certain claims. In the round he submitted that there was sufficient notice now given to the respondents’ solicitors.[4]As matters are to an extent all interlocked, I indicated that I would prefer to hear all the arguments, and the evidence that Mr Briggs’ proposed leading in relation to possibly extending the time limits for claims on behalf of Gordon and Marie Beattie before expressing concluded views.[5]Ms Donald then took me through the history and the pleadings and the basis for her strike out application. We then heard evidence from Mrs and Mr Beattie which I deal with below. We then heard further submissions. Pleadings[6]Many of the complications and difficulties that exist in this case can be traced back to the original ET1. The pleader, understandably given the common characteristics by the cases attempted to produce a document applicable to all of the claims. The pleadings made reference to “the family” which consisted of the various claimants who, as the use of the word suggests were related to each other. As background, in the summer of 2020 to June 2022 difficulties arose in the relationship between the family members, the Estate owners and the Factor, Hugh O’Donnell. These appear to have come to a head in late 2022 and early 2023 leading to the dismissal of the claimants.[7]The incidents founded upon in the present case led the family to send details of their grievances to their then solicitor, Gillian Shaw, who in turn passed these to the Estate on 29 June 2022. The grievance lodged narrated the family’s concerns. These broadly related to a lack of training and compliance with health and safety obligations and concerns about the treatment of the family on the estate by individuals particularly the Factor. There was a reference to “detriments” following the making of grievances. At this point there was no suggestion that PIDs had been made. Nevertheless, the various incidents are now said to amount to protected disclosures captured in the grievance.[8]The writer of the pleadings turns to the issue of PIDS, at paragraph 59 and sets out three alleged protected disclosures in these terms: ‘‘A) The disclosure made by Mike to the fourth respondent in respect of TJ attending work in August 2020 with a machete; B) The disclosure made by Mike in 2021 and 2022 to the fourth respondent in respect of the accident log book and a failure by the respondent to keep a note of any workplace accidents and C)The disclosure made by Gordon to the fourth respondent in 2021 that no one had any ‘‘tickets’’ for any health and safety training (although not specified I understand that the ‘‘tickets’’ makes reference to training/certification allowing the Estate employees to use equipment.’’ There was then reference to two grievances in paragraph 65: “The disclosures made by the Family in 2020 and 2021, (as outlined in paragraph 59) and the grievances made by the Family to the First Respondent on 29 June 2022 were protected disclosures in terms of section 43B of the Employment Rights Act 1996.’’[9]Apart from the three somewhat bare matters narrated by the pleader as PIDs they did not identify the protected disclosure(s) relied on that were contained in the grievance. They simply stated that the grievance contained PIDs. It was then left to the respondent’s solicitor to consider the “grievance” correspondence and work out what if any interactions might be PIDs. That matter wasn’t straightforward as the letter sent by the claimants’ first solicitor in June contained not only a summary by her of the matters she was raising on behalf of the claimants but also attached to that were witness statements from the claimants giving the background. The respondents’ lawyer was understandably concerned to identify the exact PIDs that were being relied on from all this material. It is from the narrative of various events in the witness statements that the PIDs are said to arise.[10]This matter was raised before Judge Hosie on the 4 July and he wrote as follows: ‘‘5. The protected disclosures relied upon are averred at paras 59 and 65 of the paper apart annexed to the claim forms. For the avoidance of doubt, I direct the claimants, within 14 days of receipt of this Note to provide Further and Better Particulars of, “the grievances made by the Family to the First Respondent on 29 June 2022”. It is understood that these grievances were not submitted until 22 September 2022, but clarification is required.”[11]Sadly, the matter did not end there. There was a delay on the part of the claimants’ solicitors in identifying all of the protected interest disclosures that they founded upon and this delay led the respondents’ agents to lodge a strike-out application which I heard on the 5 September (JB p769). At this point Ms Donald indicated that her clients were dissatisfied at the failure to identify PIDs from the material and the cost that they were being put to trying to get the specification ordered by Judge Hosie. She narrated how matters had developed following the Note which was issued in July and mentioned the apparent confusion that had apparently arisen (p.771) and the “shorthand” use of the words concerns/grievances as equiperating to protected interest disclosures.[12]In my Note following the hearing I gave the claimants’ solicitors an opportunity of providing the specification required (p767) I indicated at paragraphs 12 and 16 the following: ‘‘I made it clear that the starting point must be interaction between the various parties and what was said to give rise to a protected disclosure. It may be what happened in the interaction was insufficient to amount to a protected disclosure. I accepted that later correspondence might effectively “cure” any problems with the earlier protected disclosure but we must know what that was said to be. I noted that Ms Shaw had written in June : ‘‘My clients have highlighted a number of contractual, grievance, confidentiality and health and safety issues’’. These were not detailed’’ and at 16: ‘‘The genesis of the problem seems to go back to the initial pleadings. Where it is said here that ‘‘earlier’’ concerns or grievances are protected disclosures they must be clearly identified. It must be apparent that when protected disclosures are advanced sufficient information has to be provided to ensure both fair notice to the respondents of their nature and that the disclosures comply with the guidance set out in the case of Blackbay Ventures Ltd to be qualifying protected disclosures.’’ Further and Better Particulars[13]The claimants’ solicitors produced Further and Better Particulars on 13 September (p.797-803). These were meant to provide the greater specification requested. It is with these pleadings we are concerned with today. I will say in passing that the intention of providing common pleadings was well intentioned but seems to have caused a loss of focus on the individual alleged disclosures.[14]The possible disclosures then identified in this document amounted to some 20 in number (JB 800-805). Ms Donald accepted that the first eight disclosures were identifiable from the ET1 but rejected the others as requiring amendment. She pointed to the fact that the pleader at this late stage in the development of the pleadings had made reference (at paragraph 5) to the origin of the disclosures and referenced back to the e-mail from Ms Shaw in September 2022. That e-mail contained what I take to be Ms Shaw’s understanding of the main grievances that her clients articulate at that time. There was no specific reference by that solicitor to PIDs. (I observed that this in itself was perhaps not unusual as this was her initiating a grievance process not writing pleadings). As noted, earlier witness statements from various claimants which are narratives of various incidents were attached to the email.[15]Ms Donald also took me to the Disclosures 1-8 suggesting that they were deficient in necessary detail and should be subject to deposit orders. This led to a discussion about these disclosures. We looked at Disclosure 1 which was said to be a crime or breach of a legal obligation. It wasn’t clear what sort of crime or obligation was at issue. There was reference to unfair dismissal but the claimant did not resign and was dismissed some months later. I assumed the pleader might be referring to the implied duty of trust and confidence. In Disclosure 3 the allegation was the Factor entered Mr and Mrs Beattie’s house when they were not in. This is said to be a crime or breach of a legal obligation. I questioned Mr Briggs as to what the obligation might be. The pleader had not sought to clarify the matter. I queried whether it was some right to privacy or peaceful occupation under a lease but Mr Briggs was unable to say definitively what it might be. When I suggested to Mr Briggs (Disclosure 4) that a machete was on the face of it a tool and there was no background to indicate why this was a criminal matter. He properly reminded me that it was not where or not there was an actual criminal offence but the claimant’s reasonable belief that mattered. I suggested that there should be some context to understand why the claimant came to this view.[16]We went through the various other disclosures. Essentially Mr Briggs’ position was there was enough in them to give notice to the respondents.[17]Paragraphs two and three of the grievance (p814) is in the following terms: ‘‘2. Unfair Dismissal and Age Discrimination 3. Grievances against Hugh O’Donnell, HOD and TJ McCormack TJM”[18]I now turn to consider the Disclosures 9-20. Ms Donald asked that these disclosures should not be accepted or if accepted subject to deposit orders as having little reasonable prospects of success.[19]This disclosure is allegedly made by Mr Beattie who makes reference to his witness statement (document 6 to paragraphs 2a and 3f). The date is given although there is in paragraph 2a no specification in relation to dates or times when the Factor allegedly entered his house “when we are there and when we are out”. There is reference to an incident on the 4 October 2022 and an allegation that the Factor, Mr O’Donnell, told him he was going to be retired. The incidents were said to be criminal offences and breaches of obligations. It was difficult to understand why indicating to someone that they are going to be retired can amount to a criminal offence.[20]I would observe that it is unsatisfactory to have to refer to extraneous documents when trying to understand pleadings and the fact that the documents are witness statement lends itself to ambiguity. The pleadings are prepared by specialist employment lawyers who should filter the background into clear pleadings.[21]This relates to Mr Beattie and refers to paragraph 3j of his witness statement which relates to an incident in 2021 that he told the Factor that ‘‘all our H&S certification was out of date’’ This also made to paragraph 13 of the ET1. These were said to be criminal offences, breaches of obligations and health and safety issues.[22]This again relates to Mr Beattie. It refers to paragraph 3c and 3h of his statement. 3c relates to an allegation that the Factor told him that he was recording conversations with himself and his employees and interactions between Mr Beattie and the Factor on 26 October 2022 in relation to the use of CCTV. This was alleged to be a criminal offence (which was not specified and/or a breach of an obligation (unspecified).[23]This disclosure was made by another member of the family, Mike Chalmers. Reference is made to paragraph 10 of the ET1 and to paragraph 3a of his witness statement. It relates to “TJ taking a machete to work”. He says in the statement (p880): “..he should not have that in the vehicle and said the Police would arrest him if he was stopped with it. He just ignored me and got into the vehicle to head to Glasgow for the weekend. I brought it up to Hugh that TJ had turned up with a machete, he said, oh yes, he has a whole toolkit. He downplayed the entire thing and dismissed it. I was surprised he did not care.”[24]He also wrote that he thought the machete was a weapon and that it was “clear intimidation” (said to be an unspecified criminal offence) and a breach of a legal obligation (unspecified). It can perhaps be inferred from the whole statement that Mr Chalmers believes that the machete is an offensive weapon and accordingly proscribed. It is not said why he comes to that conclusion or what the ‘‘clear’’ intimidation is. A machete is a tool. Context might suggest a sinister use. It’s design might suggest it was not a tool but for example a so called “Zombie’’ weapon. We are not told.[25]This was made by Mr Chalmers and refers to paragraph 3c. The disclosure seems to be training/health and safety related. This paragraph ends “I felt he didn’t have the experience in operating machinery we have in the workshop and raised this with Hugh. I don’t believe this was ever followed up.” This is said to be a criminal offence, breach of an obligation and a health and safety issue.[26]This was made by Kirene Chalmers and refers to paragraphs 3a and 3b as per her statement. Paragraph 3a describes a meeting she had with the Factor. There is reference in the paragraph to hazardous waste (unspecified) and ‘‘ TJ making a mess’’. Paragraph 3b relates to a discussion with Stuart O’Sullivan in which he allegedly said, “snitches get stitches”. The claimant felt this was a threat and it is alleged that this was a criminal act (unspecified) or a breach of obligation (unspecified).[27]This was allegedly made by Mrs Kirene Chalmers. It relates to alleged aggressive behaviour on the part of the fourth respondent. It said that the disclosure was made in an e-mail on 8 June 2022 and further information was provided in paragraph 3c of her statement. Paragraph 3c says that: “After the incident on 8 June with my mother, I e-mailed Stuart O’Sullivan. Not only did he tell me to revert my queries back to Hugh, but he also forwarded my e-mail of complaint to Hugh. There was no confidentiality, I sent another e-mail saying we could not continue to deal with Hugh as he is the cause of many of the complaints, I was yet again told Hugh was my contact for the issues. It was worrying knowing we had no one to talk to about the continued unhinged behaviour. Stuart then said the matter was with their lawyers. We never heard anything from their lawyers.”[28]This disclosure was said to be a criminal offence and a breach of obligations both unspecified. It was difficult to envisage how it could be a criminal offence although perhaps the use of the word confidentiality is meant to be a clue. The next communication was between employee and employer might hint at some data protection breach, but it is unclear.[29]This was made by John Chalmers and reference is made to paragraph 5m of his witness statement which states: “I feel like my responsibility of the Hydro has been severely mismanaged, I have never had any pay rise for this additional work and no health and safety measures were ever in place. We were supposed to get GPS but I was told they were too expensive, I was to be trained but nothing came to fruition. I had issues with Hugh in the past but everything got dismissed. There is no thought for health and safety especially if there is a cost.”[30]This was said to amount to a criminal act, breach of obligation and health and safety issue (unspecified).[31]This relates to Mr Chalmers and related to alleged aggressive behaviour on the part of Mr Hugh O‘Donnell. Reference was made to paragraph 5h of his witness statement. 5h states “On 25 October in the morning Hugh came racing round in his car to the front of my house, nearly running over my dog. He said ‘do you not fucking answer your fucking phone?’ He was very aggressive and angry. I said I would check when I got my phone, thinking I had maybe missed something. It was then I checked my phone and found a message sent at 3.46am and another whatsapp message that morning at 8.08am, it was approximately 8.20am when he was shouting and swearing at me about not checking my phone. He had asked me for the deer cull figures which he needed for a meeting he was going to that day……”[32]It is alleged that this disclosure was an unspecified criminal act and a breach of an unspecified legal obligation. Harassment/Victimisation[33]The claims for harassment appear in the ET1 documents for Gordon and Marie Beattie (JB7 and 8). The incident that constituted the first act of harassment was said to have taken place on the 8 June 2022 when the Factor, Mr O’Donnell, told them they would be retired by the end of the year. (p43 paras 16 and 18). The second was a letter received in early October telling them that the estate needed younger people and it was time for them to retire.[34]The victimisation is said to arise after receipt of the grievances and after the early conciliation process was begun (p14). The acts were said to ‘‘include’’ the sending of the letter above, failing to investigate the grievances, accusing them of being in bad faith and using threatening language to retrieve alleged estate property following termination of their employment. It is not specified but presumably the protected act is said to be contained in the grievance.[35]Mrs Beattie gave evidence about some of the history of the difficulties that had arisen in the estate with the Factor and ‘‘TJ’’. This led her and her husband to seek legal advice. This was arranged by their daughter Mrs Chalmers the second claimant who liaised with the lawyer, Ms Shaw, on their behalf. She spoke to the various incidents recorded in her statement dated 14 November 2022 which had been provided to Ms Shaw (p890-893). Mr Beattie similarly gave evidence about incidents he had referred to in his statement (p887-889). They confirmed that they had taken advice on their respective legal positions, albeit through their daughter who acted as spokesperson for the family leading to the submission grievances. The current solicitors were instructed later. Mr Beattie confirmed that the catalyst for seeking legal advice was the incident on 8 June with Mr O’Donnell the Factor (page 887). Mr Beattie’s position was that he had not been told what sort of claim they could make arising from this incident or arising from the terms of the letter. I found it difficult to accept given the terms of the conversation and letter that possible age discrimination was not raised by the specialist employment lawyer they consulted or that in their own minds they did not wonder if this amounted to age discrimination.[36]It was accepted that claims for harassment were made when the current proceedings were instituted. Mr and Mrs Beattie applied for early conciliation on 27 February 2023. By this point they had been dismissed along with other members of the family on the 15 February 2023.[37]Mr Briggs submitted that there was no prejudice to the respondents if the claims were late. The incident in June was relatively recent and there could be no real prejudice to the respondents. The two claimants had lodged grievances which had not been addressed. The Tribunal should exercise the dispensing power to allow the claims late.[38]Ms Donald went through the history pointing to significant dates. In essence her position was that the claims were considerably out of time. The incident in June was 11 months old by the time the ET1 was lodged on the 5 May 2023. She referred to the well- known case of Robertson v. Bexley Community Centre and the guidance that granting an extension was the exception and not the rule. The burden was on the claimants to show why the equitable power should be exercised. In addition, two individuals have been brought into the proceedings namely Mr O’Donnell and Mr O’Suilliven the second and fourth respondent. The fact that they were brought in as individuals would inevitably lead to lengthier and more costly proceedings in her submission.[39]Ms Donald referred to the case of Harden v. Wootlif & Anor UKEAT/0448/14/DA. In that case the extension was allowed on the basis that the claim for harassment against a named individual added little to the overall claim made against the employer. In considering the balance of prejudice the EAT held that the ET had failed to consider the balance of prejudice of bringing the complaint of harassment against the second respondent separately from such considerations in relation to the claim against the corporate first respondent. The reason given for considering that the balance of prejudice favoured extending time on a just and equitable basis to allow the complaint of harassment to go forward as "the complaint as pleaded adds little to the remainder of the Claimant's claim", did not apply to him. The complaint of harassment was the only complaint to which he was a respondent. The remainder of the claims were against the first respondent. Being a respondent to a claim was very different from being a witness. In this case the two respondents are brought into the proceedings because of these claims. Discussion and Decision[40]One of the aspects of the employment Tribunal rules is that it is often forgotten that any alteration to a parties’ position as articulated in their ET1 or ET3 is an amendment and subject to the Tribunal’s case management powers under Rule 29. A Tribunal can give permission, as here, for a party to lodge what are commonly referred to as Further and Better Particulars but I do not accept Mr Briggs’ suggestion that once tendered in compliance with an order the Tribunal has no option but to accept them in whatever form or state they are in. Often, of course, they are not contentious but where they introduce a new claim then that portion of the particulars can be objected to and then either accepted or refused by the Tribunal applying the guidance built up over the years and in particular in cases such as Selkent. The situation is similar in the civil courts where an amendment may be ordered but subject to opposition and possible rejection at the stage where the actual pleadings are sought to be amended.[41]In the case of Remploy Ltd v. Abbott and others UKEAT/0405/14, the EAT, allowed an appeal against a Tribunal’s decision to permit amendment to claims which had been professionally drafted by experienced solicitors and counsel. The EAT confirmed that, in deciding whether or not to allow an amendment to a claim, Employment Judges must consider issues such as the reason for delay, and the impact that the amendment is likely to have on case management and preparation for hearings, in light of the prejudice to the parties. Critically, the EAT stressed that: “It is essential before allowing an amendment that it must be properly formulated, sufficiently particularised, so the respondent can make submissions and know the case it is required to meet.” Without a properly particularised application for an amendment, the EAT held, an Employment Judge is “simply not in a position to consider the effect of the proposed amendments.”[42]In the situation here the claimants have engaged specialist solicitors who were warned by the Tribunal that the PIDs should be drafted bearing in mind the guidance given in the case of Blackbay Ventures T/A Chemistree v. Gahir. In particular at paragraph 8 Judge Serota says as follows: ‘‘The Employment Appeal Tribunal suggested that when considering claims by employees for victimisation for having made protected disclosures Employment Tribunals might take the following approach:a. Each disclosure should be separately identified by reference to date and content.b. Each alleged failure or likely failure to comply with a legal obligation, or matter giving rise to the health and safety of an individual having been or likely to be endangered as the case may be should be separately identified.c. The basis upon which each disclosure is said to be protected and qualifying should be addressed.d. Save in obvious cases if a breach of a legal obligation is asserted, the source of the obligation should be identified and capable of verification by reference for example to statute or regulation.’’ (my emphasis)[43]The test that the Tribunal should apply in these situations is one of fairness to parties. This arises from the overriding objective and the case management powers of the Tribunal. The respondents are entitled to fair notice of the case they must meet and this includes the specification that I have emphasised above and which is missing from the current pleadings. I do not accept Mr Briggs’ submission that there is just enough or that it offends the overring objective in some way to spend too much time on these pleadings. It is only after the deficiencies that have been identified are addressed that the Tribunal can properly decide if they should be allowed as new claims and then subject to deposit orders. Accordingly, I refuse to allow the Further and Better Particulars in full. No objection was taken to the first 8 disclosures although Ms Donald criticised them as being open to many of the same criticism suffering from many of the same criticism that apply to the disclosures from 9 onwards. I agree with her assessment. It is up to the claimants’ solicitors as to whether the pleadings should be comprehensively revised in the light of my comments or only the disclosures from nine onwards.[44]If the claimants insist these disclosures proceeding, they need to seek to plead them to be compliant with the guidance in Blackbay and the principles of fair notice.[45]I would hope that the claimants’ solicitors would also consider whether these various incidents are properly protected interest disclosures or background to what appears to have become a difficult relationship with the employers which may have relevance to the unfair dismissal claims. There is always pressure on agents to ensure that every possible claim is covered. This does not mean that every possible claim should proceed. There is a danger that incidents are ‘‘shoehorned’’ into fitting or justifying claims when the facts do not sit comfortably with them. I would observe that if the efforts of the solicitors to extract PIDs from the grievance and witness statements had proven so fraught how the employers were expected to identify them from the same material.[46]I am conscious that these proceedings are costly in time and no doubt in legal fees, but the respondents are entitled to expect the information I have identified as the provision of this will allow both sides to prepare efficiently for a final hearing to be able to focus on the real issues between the parties. Victimisation/Harassment[47]In relation to the claims for victimisation and harassment the history of the claims is instructive. The two claimants Mr and Mrs Beattie through the agency of their daughter Kirene Chalmers took legal advice at the end of June 2022 in response to various matters but for these particular claims the issue was an alleged threat that they would be compulsorily retired. Ms Shaw is an experienced solicitor specialising in employment law. She wrote (p857) on the 29 June that her clients have highlighted ‘‘a number of contractual, grievance, confidentiality and health and safety issues’’.[48]This prompted correspondence with the respondent company’s solicitors who wrote to her on the 26 July seeking details of the concerns relating to each of the family members. On the 22 September 2022 Ms Shaw sent the respondents’ solicitors (p860) ‘‘a list of my client’s grievance concerns’.’ She had summarised these in various headings one of which was ‘‘unfair dismissal and age discrimination”. This referenced the 8 June incident, and she wrote: ‘‘This amounts to unfair dismissal and age discrimination’’. Any claim arising out of the incident would be time barred at this point. Ms Shaw gave no evidence as to her instructions nor did Ms Chalmers the go between, but it seems tolerably clear from the Grievance that Ms Shaw had analysed the incident and concluded it could amount to age discrimination. Mr and Mrs Beattie received the letter dated 27 September written by Mr Coates about retirement. On the 1 November Ms Shaw was written to by the respondents’ solicitor requesting further information before her clients could investigate matters (p866). On the 8 November Ms Shaw writes that she had met her clients and was collating further information. She confirms she has been passed the letter from Mrs Coates. She ends: ‘‘’They are considering their position in relation to these matters’’.[49]For whatever reason claims were not advanced at this stage either in relation to the June incident or the letter in September. It might be that it was hoped to preserve the relationship with the employer and a decision taken not to pursue claims for age discrimination at this stage but the reasons for not taking action are unclear. What is clear is that Mr and Mrs Beattie have taken legal advice and almost certainly have been advised that what happened could amount to age discrimination.[50]A Tribunal has a very wide discretion in whether or not to extend time for a discrimination claim to be started and is entitled to consider anything that it considers relevant to the matter. An Appellate court can only interfere with the exercise of a discretion if it is plainly wrong and there has been some error of law or principle. In allowing or refusing an amendment the timing is often an important consideration and the reason why such a claim has not been pursued earlier is a relevant factor. The Tribunal needs to balance what has been described as the balance of prejudice to each side.[51]When Tribunals consider their discretion to consider a claim out of time on just and equitable grounds there is no presumption that they should do so unless they can justify failure to exercise the discretion. In this case both Mr and Mrs Beattie had taken professional advice as to their rights and there was no bar to a claim or claims being made timeously. They clearly felt strongly about both matters and no doubt that was conveyed to Ms Shaw. It would be extraordinary if Ms Shaw had not mentioned the possibility of raising proceedings to them.[52]In any event allowing these claims to proceed does cause real prejudice to the two individuals involved namely Mr O’Donnell and Mrs Coates. They are brought into the proceeding’s simply on these grounds. As was observed in the case of Hardin v. Wootlif being a potential witness in a case is a far cry from being a party to proceedings with all the responsibilities and potential liability that entails. Although the claimants lose rights to pursue these claims they can still pursue the claim for unfair dismissal and these matters are of possible relevance to that.[53]A Tribunal cannot hear a complaint unless the applicant convinces it that it is just and equitable to extend time. The exercise of discretion is the exception rather than the rule. I am not convinced that the time limit should be extended here given the circumstances I have narrated and accordingly the claims for harassment and victimisation are struck out as being out of time. Deposit Orders/Amendment of New Claims[54]In relation to the question of amendment and deposit orders sought my view is that these should be considered when the pleadings have crystallised. To save expense that could be done by written submissions, and I welcome parties’ views. It may be that some of the alleged disclosures will be dropped or recast in a more acceptable form. In anticipation that I might have to consider deposit orders the claimants have provided information about their finances which can be taken into account.[55]In the first instance the claimants’ lawyers will have 7 days to consider their position and intimate that they will revise the pleadings. I will also order that date listing letters are sent out to identify dates for a case management hearing (if needed) and a merits hearing. EMPLOYMENT TRIBUNALS (SCOTLAND) Case Numbers: 4102910/2023, 4102911/2023, 41029012/2023, 4102914/2023 & 4102957/2023 Claimants: Mr M Chalmers & 5 Others Respondents: Wyvis One Estate Limited & 3 Others CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 In accordance with the power set out in Rule 69 of the Employment Tribunal Rules of Procedure 2013, I hereby correct the clerical mistake(s), error(s)or omissions(s) in the Judgment sent to the parties on 21 November 2023, by deleting: At Paragraphs 19, 33, 35, 38 and 52 “Mr Urquhart” and substituting therefore “Mr O’Donnell”. At Paragraphs 48 and 52 “Mr Coates” and substituting therefore “Mrs Coates”. At Paragraph 3 “Mr and Mrs Chalmers” and substituting therefore “Mr and Mrs Beattie”. At Paragraph 2, Line 15 after the word “victimisation” and before the word “made” interline “(excepting therefrom the claim for victimisation and termination of employment”). At Paragraph 2, Line 16 delete the words “third and fourth respondent” and substitute “against the respondents”. An amended version of the Judgment is attached. Contd./..2.. Important note to parties: Any dates for the filing of appeals or reconsideration are not changed by this certificate of correction or the amended Judgment or Case Management Order. These time limits still run from the date of the original Judgment or Case Management Order, or if reasons were provided later, from the date that those were sent to you. Signed J M Hendryclaims.
[56]This is a difficulty for the claimant, Mrs Beattie recognised by her solicitors who try and get round the problem by saying at page 14 (paragraph 75 and 76) that she had a concern that the Estate “may be facilitating the behaviour of HOD and that other employees “or guest and visitors could be subject to the same treatment”. There is no suggestion that other employees/claimants were of traditional retirement age and it is difficult to see any immediate concerns they had although in general terms alleged discriminatory behaviour directed at two employees could be concerning as perhaps indicative of poor employment practices. Guests or visitors do not work for the first respondent and are not going to be compulsorily retired. It seems somewhat unlikely that they could be impacted in any way even if such discriminatory views were widely held. Later they aver that the Estate is open to the public and that guests would want to know that the claimants were being subject to such treatment. This latter suggestion appears a little improbable and overall the claimant’s position appears somewhat artificial.[57]However, it may be that the Tribunal having heard evidence comes to a different view. As the authorities that might still not be fatal to the claim, looking at the matter in the round I cannot say that it has either no reasonable prospects of success or little reasonable prospects of[58]The other claimants, Mr M Chalmers, Ms K Chalmers Mr J Chalmers and own right add anything to Mrs Beattie’s case and in these circumstances must be considered in the same light and as with Mrs Beattie’s claim therefore I cannot say that they have either no reasonable prospects of success or little reasonable prospects of The pleadings state that this disclosure was made by Mr M Chalmers, Ms K Chalmers and Mr J Chalmers. It relates to a threat to have Mr and Mrs Beattie “retired”.[59]The allegation is similar to Disclosure No 1 except that it relates to a separate alleged conversation in mid June with HOD and Mr and Mrs G Beattie. This does not appear in Mr and Mrs G Beattie’s statements but in the grievance covering document (p861) headed “Kirene Chalmers and Others-Grievance Issues” which references this as age discrimination and possible unfair dismissal.[60]The comments made above about Disclosure 1 apply equally to this disclosure. The other claimants aver (p16) that they believed there was a breach of a legal obligation namely the Equality Act, and that other employees might be subject to such discriminatory behaviour. There is no reference to guests having any possible concerns with this Disclosure.[61]For the same reasons as with Disclosure 1, I conclude that I cannot say there is either no reasonable prospects of success or little reasonable prospects of success.[62]The other claimants, Mr M Chalmers, Ms K Chalmers Mr J Chalmers and own right add anything to Mrs Beattie’s case and their claims too cannot be said to have either no reasonable prospects of success or little reasonable prospects of success. The pleadings state that this disclosure was made by the claimants Mrs Beattie, Mr M Chalmers, Ms K Chalmers and Mr J Chalmers through the grievance lodged on 22 September.[63]It relates to the fourth respondent entering the house of Mrs and Mrs Beattie without permission on the 30 August, 8 June and 20 September 2022. Mrs Beattie asks in her attached statement that this is investigated. The word used in the grievance is that he “inappropriately” entered the house. My understanding was that this was a ‘tied’ house belonging to the estate. The circumstances under which this occurred are not set out In short, the wrongdoing complained about is not identified other than saying he did so “regularly” (although only three occasion’s are averred) when they were not at home.[64]The claimants argue that this was a breach of the right to private and family life in accordance with Article 8 of the European Convention. 65., The public interest aspect is said to be a fear that other employees might be subject to such behaviour (we are not told that they have tied accommodation) to prevent the Estate’s reputation being sullied by such behaviour. I cannot conclude that either no reasonable prospects of success or little reasonable prospects of success.[66]The other claimants, Mr M Chalmers, Ms K Chalmers, Mr J Chalmers and own right add anything to Mrs Beattie’s case but I conclude that I cannot say that there is either no reasonable prospects of success or little reasonable prospects of success. TJ entering the workshop with a machete, circling the workshop on his bicycle, circling the farm where John Chalmers lives in a quad bike.[67]“TJ” is the nickname for Thomas James McCormick who is the son-in-law of the Fourt Respondent. All the claimants maintain this disclosure. It was contained in the grievance letter. It was not labelled as a disclosure but described as threatening behaviour towards John Chalmers. It in fact contains three incidents. The possession of the machete, despite on the face of it being the sort of tool that might be used in estate work is said to be thought of an offensive weapon and thus prohibited.[68]The claimant once more set out a common position. They say that they had a reasonable belief that the possession of the machete was prohibited and he intended taking it in his car and that it’s possession “without training” could amount to a breach of health and safety legislation (unspecified). They go on to say in relation to the public interest that TJ with a machete was a risk to the public or “if it was left unattended” and that the other two incidents were a breach of privacy. I would note that the original grievance linked the three issues by saying that this was threatening/intimidating behaviour towards Mr Chalmers. This seems to be no longer the position being taken. I note from paragraph 10 which deals with TJ taking the machete to work that there are no averments suggesting any threatening or intimidating behaviour. The pleadings are frankly confusing.[69]However, in relation to the central issue of believing that simple possession of a machete was prohibited I cannot say that this has no reasonable prospects of success. While I have considerable reservations about this disclosure I am not prepared to conclude it has little reasonable prospects of success because at the core there is an arguable issue in relation to the possession of the machete although one that I think if legally incorrect it may be that the claimants can persuade a Tribunal of their reasonable belief in this matter. Covid and failure to isolate i[70]This relates to alleged happenings in December 2021 reported in the grievance in September the following year as a Health and Safety issue (Jb862). HOD is said to have failed to isolate his girlfriend when she had Covid. It is easy to forget with the passage of time that these issues were taken very seriously during the pandemic. In a situation like this I believe that the public interest in the matter is clearer. Anyone could be affected by a failure to adhere to the guidelines and the public interest element is perhaps clearer. I cannot say that this possible disclosure itself has no or little reasonable prospects of being upheld. Secretly Recording Employees[71]This is briefly dealt with in the grievance letter as intimidation/breach of privacy. There is little detail given about the CCTV system. The claimants say that they were not involved in it’s operation. Mrs Mairi Beattie references it in her statement (JB893). It seems from what she says that the claimants were aware that there were cameras and that the estate had CCTV. Her complaint was that it was being used to intimidate her as she had been told by HOD that he was watching the family and “You can tell someone is actively watching as the camera follows you”. The issue does not seem to be directly related to the making or keeping of recordings but the use of the system to intimidate employees. In other words, to use it to follow them and by doing so make them aware that they are being watched presumably when not working and when at their property where a reasonable expectation of privacy might be expected. The matter is referred to in general terms and no indication is given as to how long this has been happening. It is described as breach of privacy in the grievance.[72]It appears that the essential elements of a disclosure have been made. It gives information about the possible misuse of the CCTV system. The public interest issue is said to be the possible recording of guests and visitors. I am of the view that there is an arguable case that a disclosure has been properly made. I cannot say that it had either no reasonable prospects of success or little reasonable prospects. In these circumstances I reject the application for strike out or deposit order. Intimidating and erratic behaviour[73]These relate to the behaviour of the fourth respondent (or HOD as described in the pleadings) towards the claimants. The incidents are said to amount to a disclosure showing a breach of both the “common law duty of care” and right to a private life or privacy.[74]The first incident was the fourth respondent allegedly displaying intimidating and “inappropriate” behaviour in the home of Mr and Mrs Beattie on 18 and 19 August 2020. The other incidents relate to a comment made to John Chalmers “snitches get stitches” (March 2022), erratic behaviour on 14 June, intimidating behaviour on the 4 July and erratic behaviour on 19 August (from her statement this may be the 7 October p885) to Kirene Chalmers. It is not clear from the pleadings exactly what the behaviour amounted to that made it “inappropriate” or “erratic”. It is said that “there had been a failure to comply with a legal obligation ...this was due to the cumulative nature of the incidents ..the breach was generally in respect of a common law duty of care and specifically in respect of the incidents on 18 and 19 August 2020 a breach of the right to respect for private and family life..”. The public interest element is said to be a fear that this behaviour will be replicated to other employees.[75]The public interest element appears weak. It is possible that it can be satisfied when it could impact other employees but in relation to these incidents only Michael Chalmers is absent and my understanding was that the claimants were the permanent estate employees. It seems that these matters were between the employers and the various claimants concerned and the disputes were in that sense private between them and the Factor. I am not prepared to strike out the claim here as I cannot say that there is no reasonable prospects of success. However, taking the pleadings at their highest I cannot conclude that there is little reasonable prospects of[76]The other claimants, Mr M Chalmers, Ms K Chalmers Mr J Chalmers and own right add anything to Mrs Beattie’s case and their claims too cannot be said to have little reasonable prospects of success. 20 September 2022 incident at the home of Mairie Beattie where the Factor entered uninvited said she will be leaving employment at the end of the year but if she does not send a letter of grievance she can stay in the house.[77]The pleadings state that this disclosure was made by all the claimants through the grievance lodged on 22 September. This is said to be an uninvited visit but otherwise it is a repetition of alleged threats that the claimant will be leaving her employment. It is said to have the same public interest element as Disclosure 1 namely a breach of the Equality Act and also the right to a private and family life under the European Convention.[78]As with earlier Disclosures I struggle with the public interest element but that is not crucial at this stage. It is best determined by the Tribunal after hearing evidence. I cannot say that this has either no reasonable prospects of success or little reasonable prospects of success. The other claimants, Mr M Chalmers, Ms K Chalmers Mr J Chalmers and Mr G Chalmers although associated with the grievance do not in their own right add anything to Mrs Beattie’s case and their claims are likewise not struck out or subject to a deposit order on the basis that it cannot be said that there is no reasonable prospects of success or little reasonable prospects of success. Victimisation[79]The respondents also argue that the claims for victimisation are time barred. These are made by the first and second claimants at paragraph 176. Section 27 of the Equality Act is in these terms: “27 Victimisation(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act."[80]The pleadings are at paragraph 176. To engage this Section there has to be a protected act. The two claimants, Marie and Gordon Beattie say that their grievance is a protected act and applying to ACAS is a second. The pleadings are mirror images of each other. There is only one clearly specified incident namely sending the letter intimating their retirement and this has been dealt with earlier. This was somewhat problematical as this letter caused the grievance to be sent and has no protected act preceding it. The paragraph ends with general allegations such as failing to investigate the grievance, saying it is in bad faith and using threatening language to retrieve estate property. This last issue seems to be a reference to an incident referred to in paragraphs 53, 54 and 55 about the recovery of an old Land Rover.[81]Paragraph 55 says that the first respondent instructed their solicitors in April 2023 to allege the vehicle was effectively stolen to threaten “the Family”. How this involves the first and second claimants is not particularly clear. However I am prepared to look at the matter broadly. If the recovery of the property is found to related to the protected acts then no matter how phrased the sending of the solicitors letter could be seen as victimisation if the cause of it being sent in the first place is victimisation and not the bona fide recovery of property.[82]Prior to the hearing the claimants need to consider this matter and give the respondents’ agents fair notice of their position. In the circumstances, while accepting that there are live issues of time bar I am forced to agree somewhat reluctantly with Mr Brigg’s submission that there is “just enough” to proceed to a hearing and that I cannot clearly conclude with reference only to the pleadings that the claims are time barred or have no or little reasonable prospects of success other than categorising the end sing of the letter as victimisation and accordingly that is struck out. General Observations[83]It has no doubt taken the respondents’ lawyers many hours to try and make sense of the pleadings and to set out the claims as they see them. It should not need to be said but that should not have to be their role or mine. If I had more time I would have hoped to reduce the size of the Judgment which contains quite a bit of repletion which I might have been able to avoid[84]I would observe again that it is one thing to send an employer grievances (backed up by statements from those involved showing difficulties in the working relationships and complaining about the compulsory retirement of two of their family members) than to raise claims in the Employment Tribunal based on alleged Protected Disclosures which are not sufficiently identified from that grievance material. It was a tempting short cut to do so which has ended up with considerable time and expense being expended. While I accept the claimants’ lawyers had a difficult task in focussing the issues from the material they had it has taken far too long in my view to reach this stage where there are still ambiguities with the pleadings. These should have been addressed earlier but must be addressed before the final hearing and it may be that a Scott Schedule would allow everyone to keep track of the various claims being advanced.